So what should I plea?

Transcription

1 So what should I plea? Is it Legal Advice Or Legal Information? Presented by: Kathryn Wells-Vogel, CMCC; CPM; CCM; CCE Director of Municipal Court City of Odessa Discussion Topics Why can t clerks and court personnel give legal advice? What can clerks and court personnel do? What is Legal Advice? What is Legal Information? Who can give it? What is the difference between legal advice and legal information? Proper responses to commonly asked questions Giving Legal Advice Is Considered: The Unauthorized Practice of Law 1

2 Unauthorized Practice of Law The preparation of a pleading or other document on behalf of a defendant before a judge in court as well as a service rendered out of court, including giving legal advice or rendering any service requiring the use of legal skill or knowledge. Section of the Teas Government Code What Can Clerks Do? Eplain and answer questions about how the court works Give general information about court rules, procedures and practices Provide court schedules and information on how to get a case scheduled Give samples of court forms that are available Give general information about deadlines Legal Advice A written or oral statement that Interprets some aspect of the law, court rules, or court procedures, Recommends a specific course of action a person should take in an actual or potential legal proceeding, Applies the law to the individual person s specific circumstance. 2

3 Legal Advice is telling a defendant how the law applies to their situation and what they should do about their legal problem. Legal Information Data that is accurate, timely, specific within a contet (such as municipal court) giving meaning and relevance that can lead to an increase in understanding and a decrease in uncertainty. Data processed into a meaningful form Legal Information is conveying (eplaining) or representing the processes and procedures of the court in a manner that is meaningful to the public. FORMATION 3

4 Legal Advice Who Can Give It? Only attorneys licensed to practice law by the Supreme Court. Even court personnel who themselves are licensed attorneys may not give legal advice to court users because doing so would violate the principles of neutrality and impartiality. Legal Information Clerks and court personnel What s this stuff about neutrality and impartiality? The court clerk must fulfill all duties impartially and competently. Within the role of administratively assisting the court as a whole, the court clerk is responsible for seeing that the court s papers are accurate, orderly, and complete. While the clerk s duty is to serve all participants equally in the legal system, the clerk must remain independent of any particular participant. This means that the clerk must be as courteous and helpful to defense lawyers as prosecutors and to defendants as police officers. The clerk must never attempt to influence the outcome of any case. Level I Study Guide Welcome to Municipal Court How May I Help You? We can Provide you general information about pleas. Provide you general information about the driving safety course, deferral, etc. Provide you information in your case file. Answer your general questions about deadlines. We cannot Tell you what plea to enter. Tell you whether or not to take the driving safety course, request deferral etc. Speak to the judge on your behalf. Etend a deadline, for you, in an order signed by the judge. 4

5 How May I Help You? We can Eplain to you what generally happens at an arraignment hearing. Provide you information on how to locate driving schools. Refer you to the appeal bond form. Refer you to the prosecutor s office. We cannot Tell what the judge will probably decide about your case at arraignment. Recommend where you should take a driving safety course. Fill out the appeal bond for you. Tell you whether you should accept a plea offer. How May I Help You? We can Receive your plea and forward it to the judge. Refer you to the court s standard fine schedule. Receive your payment and forward it to the judge for review. Provide information to the judge regarding your compliance with a court order. We cannot Ask you for your plea and enter a final judgment. Assess the standard fine against you. Accept your payment as a plea of guilty and close your case. Dismiss your case after you ve provided proof of compliance with a court order. How May I Help You? We can Refer you to a directory of local attorneys. Refer you to where you can find statutes and laws. Patiently listen to you and inform you of options. Give you general information about the consequences of noncompliance in our court. We cannot Recommend a good lawyer. Research the statutes or eplain the laws that pertain to your case. Tell you whether or not to see the judge. Tell you a warrant will be issued and you will be arrested for noncompliance. 5

6 How May I Help You? We can Eplain you are not required to have an attorney. Provide you with patient, neutral, courteous, and impartial service. We cannot Tell you that you do not need an attorney in municipal court. Chastise you for getting a ticket. The How May I Help You Challenge I got a ticket and need to know what to do? GO Should I take the driving safety course? GO What about that deferred adjudification I ve heard about? GO How should I plea? GO The officer spelled my name wrong on the ticket. Can you dismiss it? GO The How May I Help You Challenge If I take it to court what is the judge going to do? GO Why do I have to pay court costs if I m not going to court? GO Can you tell the judge I don t have enough money to pay my fines? GO Where is the judge? Why can t I see him now? GO I was speeding, but I wasn t going that fast. Can you reduce the fine for me? GO 6

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33 May I help you? Legal Advice vs. Legal Information A Resource Guide for Court Clerks JUDICIAL COUNCIL OF CALIFORNIA ADMINISTRATIVE OFFICE OF THE COURTS A C C E S S A N D F A I R N E S S A D V I S O R Y C O M M I T T E E

34 Judicial Council of California Administrative Office of the Courts 455 Golden Gate Avenue San Francisco, CA Copyright 2003 by Judicial Council of California/Administrative Office of the Courts This publication is also available on the California Courts Web site: Printed on 100% recycled and recyclable paper

35 JUDICIAL COUNCIL OF CALIFORNIA Chief Justice Ronald M. George Chair ADMINISTRATIVE OFFICE OF THE COURTS William C. Vickrey Administrative Director of the Courts Ronald G. Overholt Chief Deputy Director Michael Bergeisen General Counsel and Deputy Administrative Director RESOURCE GUIDE WORKING GROUP Hon. Steven K. Austin Judge of the Superior Court of California, County of Contra Costa Working Group Chair Access and Fairness Advisory Committee Denise Gordon Chief Eecutive Officer Superior Court of California, County of Sonoma Hon. Eric C. Taylor Supervising Judge of the Superior Court of California, County of Los Angeles Access and Fairness Advisory Committee Bonnie Hough Supervising Attorney Center for Families, Children & the Courts (CFCC) Administrative Office of the Courts Lead Staff, Task Force on Self-Represented Litigants Michael Roosevelt Education Specialist Education Division/Center for Judicial Education and Research (CJER) Administrative Office of the Courts Lead Staff, CJER s Fairness Education Committee STAFF Donna Clay-Conti Scott Gardner Clifford Alumno Geraldine Dungo Lead Staff Counsel Staff Counsel Staff Analyst Administrative Coordinator Access and Fairness Advisory Committee PRODUCTION Fran Haselsteiner Senior Editor Sheila Ng Production Artist

36 Form MC-800, Court Clerk s Office: Signage

37 INTRODUCTION In recent years, courts throughout the country have identified an increase in the number of cases filed by individuals without the assistance of counsel. Because court users are unfamiliar with legal processes, they often look to you, court staff, for answers to questions about the legal system. The Code of Ethics for the Court Employees of California requires you to furnish accurate information as requested in a competent, cooperative, and timely manner but to avoid giving legal advice. You may already know that you are not supposed to give legal advice to court users. However, you may not know eactly what that term means and thus may be unsure of yourself in an important area of your daily work.as a result, when people ask questions where the line between legal information and legal advice is blurry, you may avoid giving appropriate information about court procedures because you don t want to violate the Code of Ethics. Meanwhile, court users don t get the information they need and may become frustrated; more significantly, if they don t follow the right procedure, they may be denied access to the courts. In an effort to address these concerns, the Judicial Council of California recently approved form MC- 800, Court Clerks Office: Signage, for display in court clerks offices throughout the state. The form is designed for posting at the clerk s counter or public window at each court location so that court users can read and understand the guidelines that you are required to follow. This handbook is a quick and easy reference. It is specifically intended for the use of court staff who provide telephone and counter assistance as a major part of their job duties. It is recommended that you keep it in a place where it is easily accessible while you perform these tasks. Of course, this handbook and the guidelines cannot anticipate all the possible questions that court users may ask.when new questions arise, consult your supervisor. Keep in mind, too, that many court users would benefit from legal counsel.when you are uncertain whether you are being asked to give legal advice, do not hesitate to suggest that they consult an attorney. MAY I HELP YOU? LEGAL ADVICE vs. LEGAL INFORMATION 1

38 YOU CAN EXPLAIN AND ANSWER QUESTIONS ABOUT HOW THE COURT WORKS AND GIVE GENERAL INFORMATION ABOUT COURT RULES, PROCEDURES, AND PRACTICES. You have an obligation to eplain court processes and procedures to court users. Certainly they will find sample pleadings and information packets useful, but you will also need to answer individual questions. What happens at the arraignment? You also have an obligation to inform litigants and At this hearing people are told about the potential litigants about how to bring their problems charges that have been filed against them. before the court for resolution.this includes referring They are also informed of their rights, them to applicable state and local court rules, eplaining how to file a lawsuit or request a hearing, eplain- including the right to an attorney, and bail is usually discussed. ing court requirements for documents requesting relief, and supplying sample forms. If there are court-based self-help centers in the county, you should inform litigants of their availability.the fact that such information may help a litigant does not mean it is improper. Instead, providing this kind of information is an important part of your responsibility to provide service to How do I get out of jury duty? the public. On the back of the jury summons you can find a list of the reasons for which the court may ecuse you from One good way to tell whether it is all right to answer a jury service. question is to ask yourself whether the information requested will help someone figure out how to do something. Most of these questions contain the words Can I? or How do I? Telling someone how to do something is almost always appropriate. How do I evict my tenant? If you are going to represent yourself, I can get you the packet of forms you need. You can also get information about evictions at our law library or from the Online Self-Help Center, located at 2 MAY I HELP YOU? LEGAL ADVICE vs. LEGAL INFORMATION

39 DO NOT TELL A LITIGANT WHETHER A CASE SHOULD BE BROUGHT TO COURT OR GIVE AN OPINION ABOUT THE PROBABLE OUTCOME. Analyzing a litigant s particular fact situation and advising him or her to take a certain course of action based on the applicable law is a job for a lawyer, not for court staff.advising a party what to do, rather than how to do something that party has already chosen to do, is not permitted. Even though you may have processed My friend s dog bit me. Should I sue him? hundreds of similar types of cases, you are You need to decide that for yourself. You may want to not in a position to know what is in a litigant s best interest. Only litigants or their talk to a lawyer to help you make that decision. If you decide to file a lawsuit on your own, I can give you a packet of information on how to file a civil action, attorneys can make that determination. along with the necessary forms. Your role is to provide information about the court s systems and procedures so that a litigant can know enough to make his or her own decision about how to proceed with a case. What sentence will I get if I plead guilty? I cannot predict what the judge will do. The judge will decide what sentence to impose based on the facts and the law that apply to your case. Most of the questions that ask whether to take a particular course of action contain the words Should I? So whenever you hear the word should, the court user may be asking for advice that you cannot provide. Even though you cannot answer these types of questions directly, there are a lot of ways that you can still help the court user. In many cases, you can point out various options that the person can consider in making his or her decision. You can also provide information about legal services, such as the local bar association or legal aid society, but you should not make a referral to private attorneys or a private agency. You can also refer the person to the California Courts Online Self-Help Center ( and to any court-based self-help center in the county. Should I get a lawyer? You are not required to have a lawyer to file papers or to participate in a case in court. I cannot advise you whether you should hire a lawyer in your case. Only you can make that decision. Here is a list of organizations in this area that you can call for free or low-cost legal help if you qualify. MAY I HELP YOU? LEGAL ADVICE vs. LEGAL INFORMATION 3

40 PLEASE PROVIDE COURT USERS WITH INFORMATION FROM THEIR CASE FILES, AS WELL AS COURT FORMS AND INSTRUCTIONS. You can provide case information to a court user that is public, including the material in most court files. Court files can be very difficult for many people to read and understand, so you may need to provide assistance. It is always appropriate I want to see my daughter more than the to answer questions about the court procedures and legal terms reflected in public time with my daughter? old court order allows. How do I get more court files and to assist the court user in It sounds like you want to obtain an order from the finding the specific information he or she is court modifying your present custody order. Here is an Order to Show Cause form that is usually used seeking. to bring that issue before the court, as well as a packet of information on how to fill it out. Some court files contain confidential information that should never be disclosed. There are many reasons that material in court files may be designated as confidential, including safety and privacy concerns. Disclosure of confidential information could also give an unfair advantage to one side of a case. If you are not sure whether a record is considered public or confidential in your court, check with your supervisor. It says relief requested net to this blank on the form. What do I put there? I can t tell you what words to use, but you should write in your own words what you want the court to do. If you have any question about the kind of remedies that may be available in your case, you should consult an attorney. Providing court forms and, when available, written instructions on how to fill out those forms is an important part of a clerk s job. Often court users will not know what forms to request in order to bring their matters before the court. When this happens, you should identify and provide forms that may meet the court user s needs. Court forms can be confusing, so people frequently ask for help in filling them out. If a court user cannot figure out how to fill out a required form, he or she may be denied access to the court.you can answer questions about how to complete court forms, including where to write in particular types of information and what unfamiliar legal terms Can I see the Kramer adoption file? mean. You cannot, however, advise a court user on I m sorry. Adoption files are confidential how he or she should phrase responses on a form. and may not be viewed by the public. 4 MAY I HELP YOU? LEGAL ADVICE vs. LEGAL INFORMATION

41 DO NOT TELL A LITIGANT WHAT WORDS TO USE IN COURT PAPERS OR WHAT TO SAY IN COURT. You can always answer questions about how to complete court papers and forms.you cannot, however, tell a court user what words to put on the Would you look over this form and tell forms.you threaten the court s impartiality if you me if I did it right? fill out a form for a court user using your own You have provided all the required information. words. If someone asks you what to say in a form, I cannot tell you whether the information you you should tell the person to use his or her own provided is correct; only you can know that. words to state the information requested. My form got sent back to me from You can also check a court user s papers for completeness.this includes checking to make sure that he the court because it was incomplete. What is wrong with it? or she has completed each line that is required to be It looks like you did not include all the filled in. Also, you can check for such things as signatures, notarization, correct county name and case form. Once you have filled that out, I ll be information requested on the back of the happy to file the form for you. number, and the presence of attachments. If the form is incomplete, you should inform the person completing the form of the specific problem and how to fi it. What should I say to the judge Sometimes a court user will be unable to fill out a form when he calls my case? without assistance because of a disability or illiteracy. In I can t tell you what arguments to make these limited situations, you may fill out a form for a court in court. You will need to decide that for user, writing down the specific words that the he or she yourself. Here is a handout on effective provides. The fact that you provided such assistance ways to present your case in court. You can also view a videotape on this subject should be noted I have a disability that at our law library. on the form itself. prevents me from filling out this form. Would you Litigants often ask what they should say in court. You cannot fill it out for me? give advice about specific arguments a person should make In that case I can fill out the while in court or tell people what you think would be the best form for you, but you have to tell me what information to put way to handle a court appearance. You can give out general down. I will write down whatever you say and read it back to information about appropriate courtroom behavior. Many courts have informational packets on how to prepare for court you to make sure what I have hearings that you can give to the litigant. written is correct. MAY I HELP YOU? LEGAL ADVICE vs. LEGAL INFORMATION 5

42 YOU CANNOT TALK TO A JUDGE ON BEHALF OF A LITIGANT OR ALLOW THAT PERSON TO TALK TO THE JUDGE OUTSIDE OF COURT. You should always remember the basic principle that neither parties nor attorneys may communicate with the judge e parte. Be sure that you do not violate this restriction by carrying a message from a party to a judge or by speaking to a judge on behalf of a litigant.to do I want to see the judge. Where is the office? The judge only talks with all parties to a case at the so could give one side in a case an unfair same time. You would not want the judge to be talking to the other side about this case if you were not advantage. present. The judge will speak to you at your hearing. Many self-represented litigants feel that they have a right to see the judge in the judge s chambers to eplain their situations and problems. When a litigant asks to meet with the judge, you should eplain that the judge can see a party only at the hearing or trial, when the other side is also present. While you are eplaining this rule, it sometimes helps to ask litigants how they would feel if the judge had a private meeting with the other side in their case.you can also eplain procedures, such as What is an e parte? a motion, that would allow the litigant to properly It is a Latin term that refers to one-sided bring his or her concerns to the court s attention. contact with the court. In most cases e parte contacts with the court are not allowed. Some courts delegate certain decisions to clerk s offices, especially on procedural matters and on cost and fee awards.you should avoid e parte contacts while making such decisions. Be sure that you have heard from both sides before deciding an issue and avoid even the appearance of giving one party an I know that I can t talk to the advantage in the process. judge. But you re nice could you please take her this message for me? I m sorry, I can t do that for you. It wouldn t be fair for me to present your concerns to the judge when the other side in your case is not there. But I can help you schedule a hearing with the judge so that both sides in your case can be present. 6 MAY I HELP YOU? LEGAL ADVICE vs. LEGAL INFORMATION

43 YOU SHOULD PROVIDE COURT USERS WITH SCHEDULES AND INFORMATION ON HOW TO GET A CASE SCHEDULED. YOU CAN ALSO ANSWER MOST QUESTIONS ABOUT COURT DEADLINES AND HOW TO COMPUTE THEM. You can always give out information on court calendar settings and tell court users how to get matters placed on calendar. This is one of the most important things you can do to make sure people When do I have to file my opposition papers on this motion? have access to the courts.when court users cannot figure out how to get a case scheduled for hearing, they cannot even begin the process of getting a judge to decide the case. It is often helpful to provide court users with written court schedules and information packets dealing with how to get a case set for hearing. Many courts now have this information on their court Web site, and there is a good general discussion of this topic in the Online Self-Help Center, at What is the last day I can file my lawsuit? The time for filing your case can vary depending on the particular facts involved. Determining the last day for filing a lawsuit is very difficult to do. You should consult a lawyer to help you figure this out. Unless the court has ordered otherwise, the law requires that all papers opposing this kind of motion must be filed and served on the opposing party 10 calendar days before the hearing. If you like, I can give you a handout on motion filing deadlines and how to calculate them. Providing assistance with court deadlines is a little more complicated. You can help court users calculate routine filing deadlines associated with most court hearings. Court rules state when weekends and holidays are included and when they are ecluded in counting the number of days. Court staff should help court users correctly apply these rules. Remember, if you are not sure what the filing deadline is on a particular matter, it is always appropriate to say, I don t know. On the other hand, you should not attempt to eplain the statute of limitations to court users. Those rules are very complicated, and it would be very easy to give incorrect or misleading information. When it comes to court deadlines, a good rule to remember is that if you can reject a document as untimely, then you can assist a court user in understanding why it was untimely.you can also eplain how to calculate the deadline for filing that type of document in advance so it can be filed in a timely way. I figured out that I have to file my papers 10 days before the hearing, but that day falls on a holiday when the court is closed. What do I do? Your situation falls within an eception to the 10-day rule. You must file and serve your papers by the end of court business on the net day that the court is open following the holiday. MAY I HELP YOU? LEGAL ADVICE vs. LEGAL INFORMATION 7

44 YOU CAN PROVIDE PHONE NUMBERS FOR THE LOCAL BAR ASSOCIATION REFERRAL SERVICE, LEGAL SERVICES PROGRAM, FAMILY LAW FACILITATOR PROGRAM, AND OTHER LEGAL INFORMATION SERVICES. It is the policy of the California courts to encourage litigants to use lawyers because court cases often involve legal issues beyond the understanding of the ordinary person. You can always make general referrals to associations and public agencies that provide legal services or information. A good place to start How do I get my e to pay child support? You can start by visiting the family law facilitator in Room 210. You can talk to the family law facilitator for free. The facilitator is an attorney who works for the court and helps people with support issues. He or she can help you fill out the forms and understand more about your case and what your options are. is with the local bar association referral service. You should eplain that although this is a free service, the lawyer will charge a fee. You can also provide information regarding other public legal services programs that may meet the needs of court users and refer them to any court-based self-help center in the county. Since court clerks must remain neutral and impartial at all times, you cannot make referrals to a specific lawyer, law firm, or paralegal service. Many courts have prepared handouts that include contact information for local legal services organizations. Such written materials are very useful to court users and can provide you with a handy list of appropriate referral organizations. I need a good lawyer. Who is the best? I can t refer you to an individual lawyer because the court must always remain neutral in all matters. I can give you information on the local bar association s lawyer referral service if you want help in finding a lawyer who specializes in your kind of case. You might also want to check out the Web site for the State Bar of California, which includes a section on ways to find a good lawyer. Could you check to see if there are any liens on my property? We don t have those kinds of records in this office. You can find that information at the County Recorder s office. It s located only a few blocks from here. Let me show you how to get there on this map of local government buildings. You can also tell court users that they can ask friends or colleagues for the name of a lawyer or even find one by checking the yellow pages of the phone book. Many of them are surprised to learn that lawyers will often give an initial consultation at no cost and that some will agree to provide limited representation giving advice or preparing particular papers at a reduced fee. Sometimes people call the court when they don t know whom else to call about their problems. Keep a list of contact numbers for local government agencies and departments so you can point people in the right direction. 8 MAY I HELP YOU? LEGAL ADVICE vs. LEGAL INFORMATION

45 2 Authorities and Duties Table of Contents INTRODUCTION... 3 PART 1 PLAYERS AND DUTIES... 3 A. Basic Municipal Court Organization... 3 B. The Judge Qualifications and Selection Term of Office Compensation Oath of Office Duties... 6 C. The Court Clerk Qualifications and Selection Term of Office Compensation Oath of Office Duties... 9 D. The Prosecutor Qualifications and Term of Office Duties and Responsibilities E. The Bailiff Qualifications Duties and Responsibilities F. The Warrant Officer G. Defense Counsel PART 2 AUTHORITY OF A JUDGE A. Judicial Duties Judicial Duties that May Not Be Delegated Consequences of Delegating Judicial Duties B. Magistrate Duties C. Ministerial Duties D. Judicial Authority Administering Oaths Dismissing Cases a. In General b. Mandatory v. Discretionary Judicial Duty to Dismiss Controlling the Courtroom Marriages Level I Authorities and Duties 2-1

46 E. Disqualification and Recusal PART 3 AUTHORITY OF A COURT CLERK A. Duties General Duties Required Duties Administrative Functions B. Authorities Summonsing the Jury Administering the Oath to Jurors Administering the Oath to Complainant Issuing Subpoenas Authenticating Acts C. Custodian of the Funds D. Fraudulent Documents E. Standing Orders PART 4 IMAGE OF THE COURT A. Public Perception B. Court Decorum C. Court Operations CONCLUSION APPENDIX A: STATEMENT OF OFFICER AND OATH OF OFFICE APPENDIX B: WHOSE JOB IS IT? ANSWERS TO QUESTIONS Level I Authorities and Duties 2-2

47 INTRODUCTION The single most important source of municipal court authority and jurisdiction is the Teas Constitution, which gives the Legislature the power to establish courts and set their jurisdiction where it sees fit. The Legislature eercised this power and created municipal courts in the Corporation Court Law of 1899, which has since been codified in the Government Code. The authority and jurisdiction of municipal courts can be found in various statutes and codes. In some instances, duties are prescribed by state law; in others, by city charter or city ordinance. However, most daily work assignments developed to discharge official duties are based on policies or procedures authorized by the judge and administered by the court clerk(s) and other officers of the court. A duty is defined by Black s Law Dictionary as any action, performance, task, or observance owed by a person in an official capacity. In the criminal justice system, there are several different categories of duties that may be performed by officers of the court; the key is in knowing who can legitimately perform these different duties. Authority is defined as governmental power or jurisdiction. Municipal judges are public officials who are authorized to perform judicial, magistrate, and ministerial duties. Judicial duties may not be delegated unless epressly authorized by law. If a judicial duty is delegated to a clerk, both the judge and the clerk may be subject to liability. Judges may, however, delegate ministerial duties that require no discretion and are generally administrative in nature. The court clerk carries out the ministerial duties delegated by a judge and performs the administrative and managerial functions for the court. Because statutes do not provide much direction for court clerks, clerks can look at a judge s judicial authority to get a clearer picture of the relationship between the authority of a judge and that of a clerk. This guide introduces municipal court personnel to the different players who are considered officers of the court (the prosecutor, defense attorney, bailiff, warrant officer, clerk, and judge), the different types of duties (law enforcement, magistrate, prosecutorial, ministerial, and judicial), and who has the authority to engage in those types of duties. PART 1 PLAYERS AND DUTIES This part will briefly describe the qualifications, selection, and duties of officers of the court. A. Basic Municipal Court Organization Although some of the fundamental elements of municipal courts in Teas are authorized or required by law, municipalities have wide latitude in prescribing the organizational structure of the court. In Teas, cities are created under statutes that make them either home-rule or generallaw cities. Home-rule cities are empowered to enact charter and ordinance provisions not inconsistent with state law; these provisions prescribe structural details of local court organization. A city must have a population of at least 5,000 in order to become a home-rule city. Teas statutes also provide general-law cities those with a population of less than 5,000 or more than 5,000 without a charter with some choices regarding the organization of the court. Thus, variations eist throughout the State with regard to court organization. The basic 2013 Level I Authorities and Duties 2-3

48 organization of the municipal court personnel, however, consists of the following officers of the court: judge(s), court clerk(s), prosecutor(s), bailiff(s), warrant officer(s), and defense counsel. B. The Judge The judge is responsible for presiding over trials and other court proceedings, for performing certain magistrate functions, and for the general administration of the court. Municipal judges are public officials. 1. Qualifications and Selection Separate statutory authorization for the selection of municipal judges eists for home-rule cities and for general-law cities. A home-rule city can designate in its city charter whether the municipal judge is elected or appointed. Sec (a), G.C. The judge and any alternate judges of a municipal court in a home-rule city are selected under the city s charter provisions. The judge shall be known as the judge of the municipal court unless the municipality by charter provides for another title. Sec (a), G.C. In a general-law city, the mayor is the e-officio judge of the municipal court unless the city passes an ordinance providing for the election or appointment of a judge. If the municipality authorizes an election, the judge must be elected in the same manner and for the same term as the mayor. If the municipality authorizes an appointment, the mayor ceases to be judge on the enactment of the ordinance. The first elected or appointed judge serves until the epiration of the mayor s term. Sec (b), G.C. If a municipal judge of a general-law city is temporarily unable to act, the governing body may appoint one or more persons meeting the qualifications for the position to sit for the regular municipal judge. The appointee has all powers and duties of the office and is entitled to compensation. Sec , G.C. There are no statutory qualifications for a municipal judge; in fact, about half of all municipal judges are not attorneys. The municipality may establish the qualifications for the judge by charter or ordinance. The only statutory qualifications apply to a municipal court of record, in which case the judge must be a resident of Teas, a U. S. citizen, a licensed attorney in good standing, and have two or more years of eperience in the practice of law in this State. Sec , G.C. Both courts of record and courts of non-record may appoint multiple judges. Secs and G.C. When there is more than one judge in a municipality, one judge is generally designated the presiding judge or the administrative judge. As the chief administrator for the court, the presiding judge is responsible for organizing and scheduling court activities, developing and maintaining policies and procedures, allocating the workload, assigning cases to the various courts, supervising court support personnel, and performing a variety of other administrative functions. 2. Term of Office A municipal judge s term of office is two years unless the municipality provides for a longer term up to four years pursuant to Article XI, Section 11 of the Teas Constitution and Section of the Government Code. The term of office for judges in municipal courts of record is 2013 Level I Authorities and Duties 2-4

49 established by the ordinance that created the office, for a definite term of two or four years. Sec , G.C. A municipal judge who is not reappointed by the 91 st day following the epiration of a term of office shall, absent action by the appointing authority, continue to serve for another term of office beginning on the date the previous term of office epired. Sec , G.C. If the office of the municipal judge becomes vacant, the governing body of the city shall by appointment fill a vacancy for the unepired term of office. Sec , G.C. If the office becomes vacant, the city secretary, or person responsible for maintaining the records of the city s governing body, is required to notify the Teas Judicial Council of the vacancy or appointment within 30 days. Sec , G.C. More than one court of appeals has held that a municipal judge is not an employee. Regardless if contracts are utilized to specify compensation, benefits, and epectations, it is important for local governments to distinguish municipal judges from contract employees and at-will employees. As public officers, municipal judges may be removed from office, generally for incompetence, corruption, misconduct, or malfeasance in office. A municipal judge may also be removed from office by the Supreme Court through formal proceedings initiated by the State Commission on Judicial Conduct upon a finding of judicial misconduct. Art. V, Sec. 1-a, Te. Const. 3. Compensation Municipal judges are compensated by the municipality, and the municipality sets the compensation amount. Although municipal judges are considered state judges for a few statutory privileges (e.g., being able to withhold their home address from ad valorem ta records), they are not considered so for others (e.g., being able to withhold their home address from their driver s license), including laws that set the compensation of county, district, or appellate judges. 4. Oath of Office Article XVI, Sections 1(a) and 1(c) of the Teas Constitution require all officials who are elected or appointed to take an oath of office. The oath is retained with the official records of the office, usually filed with the city secretary or the person responsible for maintaining the official records of the office. Before an elected or appointed official takes the oath of office, however, the official must swear to an anti-bribery statement, also retained with the records of the office. Art. XVI, Secs. 1(b) and 1(c), Te. Const. The oath and statement must be sworn to and properly filed every time an official is reelected or reappointed. This includes when a judge continues to serve for another term because the city did not take action to reappoint a judge or appoint another judge by the 91 st day following the epiration of a term of office. Before performing any official duties, the judge must swear to and file the anti-bribery statement of officer and oath of office. The wording of the oaths is included in Appendi A. A person administering an oath of office or statement of officer must have the authority to administer an oath. Persons who have the authority to administer any oath are listed in Section of the Government Code and include: a judge, retired judge, or clerk of a municipal court; a judge, retired judge, senior judge, clerk, or commissioner of a court of record; 2013 Level I Authorities and Duties 2-5

50 a justice of the peace or a clerk of a justice court; a notary public; the secretary of state or a former secretary of state; the lieutenant governor or a former lieutenant governor; the speaker of the House of Representatives or a former speaker of the House of Representatives; the governor or a former governor; a legislator or retired legislator; the attorney general or a former attorney general; the secretary or clerk of a municipality in a matter pertaining to the official business of the municipality; or a peace officer only if the oath is administered when the officer is engaged in the performance of the officer s duties and the administration of the oath relates to the officer s duties Presumably, a person would not be authorized to administer the oath until they themselves had taken an oath for their office. 5. Duties Judges have the authority to perform judicial, magistrate, and ministerial duties. Judicial duties require an eercise of judgment, a decision of a question of law or fact, or a choice of alternatives. A question of law is an issue involving the application or interpretation of a law. A question of fact is an issue involving resolution of a factual dispute. The choices made by judges must be lawfully available choices or alternatives. Judicial duties involve the eercise of discretion. Judicial discretion is defined as the eercise of judgment by a judge based on what is fair under the circumstances and guided by the rules and principles of law. A judge s discretion to make decisions must be based on facts and guided by law. It is the power to determine what, under eisting circumstances, is right or proper. Judicial discretion is not unrestrained, though, and must be eercised so as to give effect to the purpose of the law for the interest of justice. In the capacity of a trial court judge, the judge must be impartial and ensure that justice is done. The judge is not an adversary and must decide questions only on the basis of law. He or she must never assume the role of prosecutor or of defense counsel nor act as a special advisor to the police or a rubber stamp for law enforcement. The judge must never be influenced by the city to produce revenue or to enforce laws selectively. When cases proceed to trial, only the evidence presented and the applicable laws are legitimate bases for any judicial decision. Accordingly, the judge must allow the prosecution and the defense, as well as all other components of the system, to perform their duties vigorously, but always within the limits allowed by law. All judges in Teas are magistrates. Art. 2.09, C.C.P. Magistrate authority is additional power granted by the Teas Legislature. Although magistrate duties are broad and scattered throughout various statutes and codes, the general duty of every magistrate is to preserve the peace within 2013 Level I Authorities and Duties 2-6

51 his or her jurisdiction by issuing process intended to help prevent and suppress crime and to initiate the arrest of offenders in order that they may be brought to punishment. Art. 2.10, C.C.P. Magistrates act as the gatekeeper to the criminal justice system. Case law provides that a magistrate s authority is countywide. Gilbert v. State, 493 S.W.2d 783 (Te. Crim. App. 1973). In the municipal setting, a mayor is also a magistrate, but a mayor who is not acting as an e officio municipal judge can only perform magistrate duties and not judicial duties. The judge will rely heavily on administrative support by the clerk, but may not delegate judicial duties to the clerk or allow the clerk to influence any judicial decisions. While the judge establishes judicial policy and general court procedures, the clerk helps to implement those policies and procedures. Despite the close working relationship between the judge and clerk, there must be a clear separation between judicial and administrative functions. C. The Court Clerk Court clerks look to the judge for direction in matters pertaining to overall court policy and judicial procedures. The clerk s primary responsibilities include processing the clerical work of the court; administering daily operations of the court; maintaining court records; coordinating the scheduling of cases; and performing other duties as may be outlined in the city charter or ordinances. In the absence of more detailed, written administrative duties for a clerk by the governing body, the judge may assign various administrative duties. The court clerk is required to keep minutes of the proceedings of the court, issue process and generally perform the duties for the municipal court that a county clerk performs for the county court. Sec (c), G.C. 1. Qualifications and Selection Court clerks are elected, appointed, or hired, depending on whether the city is a general-law or home-rule city and the court is a court of record or not. For courts of non-record in a general-law city, the court clerk is elected in the same manner as the municipal judge if the judge is elected. However, some cities provide by ordinance that the city secretary serve as e officio court clerk. The city secretary who serves in an e officio capacity may be authorized to appoint a deputy to serve as court clerk. Sec (a), G.C. In a home-rule city, the charter provides for the appointment of the court clerk. Sec (d), G.C. For a municipal court of record, the city by ordinance shall provide for the appointment of a clerk of the municipal court(s) of record. The city may provide deputy clerks, warrant officers, and other personnel as needed for the proper operation of the courts, and the clerks and other court personnel perform their duties under the direction and control of the presiding judge. Cities have broad discretion in what to title the clerk, and titles vary across the State. Generally, there is one clerk of the court (either appointed or elected), and the city can hire additional clerks with titles such as clerk, deputy clerk, or even customer service representative. The city council may establish the qualifications for the position of the court clerk. Qualifications vary greatly depending on the size and workload of the court, the nature of the cases processed, the size of the staff and how the workload is distributed, and whether the court s work is done manually or by computer. Knowledge of court functions and procedures, advanced clerical skills, eperience in dealing with the public, knowledge of accounting or bookkeeping, 2013 Level I Authorities and Duties 2-7

52 office and personnel management skills, and knowledge of caseflow management are most desirable. Where courts have automated court records, clerks may also be required to possess certain computer skills. 2. Term of Office The municipal court clerk serves a two-year term of office unless the municipality provides for a longer term pursuant to Article XI, Section 11 of the Teas Constitution. If the city secretary serves as clerk, the term of office is during the term of the city secretary. Sec (b), G.C. If the office of the municipal court clerk becomes vacant, the governing body of the city shall by appointment fill a vacancy for the unepired term of office. Sec , G.C. If the office becomes vacant, the city secretary, or person responsible for maintaining the records of the city s governing body, is required to notify the Teas Judicial Council of the vacancy or appointment within 30 days. Sec , G.C. Appointed or elected court clerks, as opposed to hired clerks, may be removed from office for the same reasons as other city officials. State law governing general-law cities provides that city officials may be removed for incompetence, corruption, misconduct, or malfeasance in office. Removal may occur after providing the officer with due notice and an opportunity to be heard. Sec (a), L.G.C. In addition, if the governing body lacks confidence in a municipal officer elected by the governing body, the governing body may remove the officer at any time. The removal is effective only if two-thirds of the elected aldermen vote in favor of a resolution declaring the lack of confidence. Sec (b), L.G.C. Of course, the governing body of the municipality should eercise care in removing a judge or clerk from office and should consider the statutory terms of office for both the judge and clerk. Cities should specify grounds and procedures for removal. Statutory municipal courts of record may have statutes that prohibit removal of a municipal judge by the city council. Ch. 30, G.C. Accordingly, specific statutes and ordinances would need to be consulted. 3. Compensation The salary of the court clerk can be prescribed by the city charter in home-rule cities. Such compensation is paid out of the city treasury. For all other cities general-law or where the charter does not specify a compensation the city council sets the court clerk s salary, just as it does for other officers of the court. 4. Oath of Office Article XVI, Sections 1(a) and 1(c) of the Teas Constitution require all officials who are elected or appointed to take an oath of office. The oath is retained with the official records of the office, usually filed with the city secretary or the person responsible for maintaining the official records of the office. Before an elected or appointed official takes the oath of office, however, the official must swear to an anti-bribery statement, also retained with the records of the office. Art. XVI, Secs. 1(b) and 1(c), Te. Const. The oath and statement must be sworn to and properly filed every time an official is reelected or reappointed. The oath and statement must be taken before performing any duties of office. The wording of the oaths is included in Appendi A Level I Authorities and Duties 2-8

53 A person administering an oath of office or statement of officer must have the authority to administer an oath. Section of the Government Code lists persons who have authority to administer any oath and includes: a judge, retired judge, or clerk of a municipal court; a judge, retired judge, senior judge, clerk, or commissioner of a court of record; a justice of the peace or a clerk of a justice court; a notary public; the secretary of state or a former secretary of state; the lieutenant governor or a former lieutenant governor; the speaker of the House of Representatives or a former speaker of the House of Representatives; the governor or a former governor; a legislator or retired legislator; the attorney general or a former attorney general; the secretary or clerk of a municipality in a matter pertaining to the official business of the municipality; or a peace officer only if the oath is administered when the officer is engaged in the performance of the officer s duties and the administration of the oath relates to the officer s duties. Presumably, a person would not be authorized to administer the oath until they themselves had taken an oath for their office. Section (f) of the Government Code provides that in home-rule cities that have established the office of municipal court clerk (the clerk is either appointed or elected), the clerk has authority to administer oaths. This statute does not make any eceptions to this authority. 5. Duties The court clerk can have a tremendous impact on participants perceptions of the justice system. Each participant has a right to know and understand the court s procedures, thus the clerk should provide participants with information on court procedures while avoiding giving legal advice. The responsibility of the court clerk s position and the scope of duties have greatly increased in recent years. The professionalism, timeliness, and accuracy of the court clerk s actions are important to the proper operation of the municipal court. The court clerk must fulfill all duties impartially and competently. Within the role of administratively assisting the court as a whole, the court clerk is responsible for seeing that the court s papers are accurate, orderly, and complete. While the clerk s duty is to serve all participants equally in the legal system, the clerk must remain independent of any particular participant. This means that the clerk must be as courteous and helpful to defense lawyers as prosecutors and to defendants as police officers. The clerk must never attempt to influence the outcome of any case Level I Authorities and Duties 2-9