85 th Regular Session 2017 Legislative Update

Transcription

1 Texas State University 1701 Directors Blvd, Suite 530 Austin, Texas Tel (512) or (800) Fax (512) Justice of the Peace & Court Personnel 85 th Regular Session 2017 Legislative Update Presented by: Thea Whalen, Executive Director Randall L. Sarosdy, General Counsel Bronson Tucker, Director of Curriculum Rebecca Glisan, Staff Attorney An Educational Endeavor of the Justices of the Peace and Constables Association, Inc. Funded by a grant from the Texas Court of Criminal Appeals

2 COPYRIGHT 2017 Texas Justice Court Training Center. All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system without the prior written permission of the Texas Justice Court Training Center unless such copying is expressly permitted by federal copyright law. Address inquiries to: Permissions, Texas Justice Court Training Center, 1701 Directors Blvd, Suite 530, Austin, TX 78744

3 85 th Regular Session 2017 Legislative Update Thea Whalen, Executive Director Randall L. Sarosdy, General Counsel Bronson Tucker, Director of Curriculum Rebecca Glisan, Staff Attorney Texas Justice Court Training Center Copyright All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system without prior written permission of the Texas Justice Court Training Center unless copying is expressly permitted by federal copyright law. Address inquiries to: Permissions, Texas Justice Court Training Center, 1701 Directors Blvd., Suite 530, Austin, TX, A Note on What DIDN T Happen Jurisdictional Increase Likely for 2019 Pretrial Services Offices Trend toward personal bonds City of Houston bond program ruling Repeal of Driver Responsibility Program Surcharge Remember judge can issue waiver if indigent INDIGENCY SB 1913 HB 351 1

4 Ferguson Report Ferguson s law enforcement practices shaped by City s focus on revenue rather than public safety needs City budgets for sizeable increases in municipal fines and fees each year Exhorts police and court staff to deliver those revenue increases Closely monitors whether those increases are achieved Ferguson Report Municipal court did not act as a neutral arbiter of the law or a check on unlawful police conduct The court primarily used its judicial authority as a means to compel the payment of fines and fees that advanced the City s financial interests Ferguson Report Example of 32-year-old African-American man sitting in his car cooling off after playing basketball in a Ferguson public park in July 2012 Officer arrested the man at gunpoint Charged him with eight violations of Ferguson s municipal code, including Making a False Declaration for initially providing the short form of his first name (e.g., Mike instead of Michael ) Another charge was for not wearing a seat belt, even though he was seated in a parked car 2

5 Ferguson Report African-American woman parked her car illegally in 2007 Received two citations and a $151 fine Charged with seven Failure to Appear offenses for missing court dates or fine payments As of December 2014, over seven years later, despite initially owing a $151 fine and having already paid $550, she still owed $541 Does Texas have debtor s prison? Does Texas have debtor s prison? 3

6 Does Texas have debtor s prison A report ordered by the mayor of Houston found that the city uses its municipal court as a profit center. Of the court s 169,000 convictions in 2014, only 2,800 were given the option to pay their fines through community service, and only six cases saw their fines waived. Does Texas have debtor s prison? Nearly 25 percent of Houston s population is below the poverty line, and they estimated that at least 30,000 people should have been given the option of community service. Does Texas have debtor s prison? El Paso, a city of 680,000, issued 87,000 arrest warrants in 2014 for people who either missed their court appearances for traffic fines or other low-level cases, fell behind on payment plans, or didn t finish community service. 4

7 Indigency: Reconciliation of Bills The Legislature passed two bills that affect many of the same statutes SB 1913 and HB 351 The Code Construction Act says in reading two bills that modify the same statute, you give them both effect, if possible If not, the later passed bill (here, SB 1913) prevails Indigency: Citation A citation issued to a person for a Class C misdemeanor offense must now contain information regarding the alternatives to the full payment of any fine or costs assessed against the person, if the person is convicted of the offense and is unable to pay that amount. -- Art (b)(4), Code of Criminal Procedure Indigency: Citation The statute doesn t specify the language that must be included in the citation. What alternatives do you think need to be covered in this discussion? Payment Plans? Community Service? Waiver? Time Served? 5

8 Indigency: Notice The procedure when a defendant mails in a plea of guilty or nolo has been changed. The notice which must be sent to the defendant notifying them of their fine/costs and appeal bond (if requested) may now be sent by regular mail (rather than certified mail, return receipt requested). -- Art (b), Code of Criminal Procedure Indigency: Notice The notice also must now contain information regarding the alternatives to the full payment of any fine or costs assessed against the person, if the defendant is unable to pay that amount. -- Art (b), Code of Criminal Procedure Indigency: Notice The statute also creates a possible reading where a party would have 10 days instead of 31 days when appealing after requesting this notice. TJCTC recommends sending any appeal bonds received under this section, if mailed within 31 days of receipt of the notice, to the county court to allow them to determine timeliness. -- Art (b), Code of Criminal Procedure 6

9 Indigency: Pre-judgment Collections A communication to the accused person regarding resolution of a case must include: a notice of the person's right to enter a plea or go to trial on any offense charged; and a statement that, if the person is unable to pay the full amount of payment that is acceptable to the court, the person should contact the court regarding the alternatives to full payment that are available to resolve the case. -- Art (j), Code of Criminal Procedure Indigency: Scofflaw County assessor-collector or DMV may refuse to register a motor vehicle if they receive information that the owner owes the county money for a fine, fee or tax that is past due. But information on which this is based now expires on the second anniversary of the date the information was provided and may not be used to refuse registration after that date. -- Sec (a-1), Transportation Code Indigency: Scofflaw Information about other fines that become past due before the second anniversary of the date the initial information was provided also may not be used to refuse registration unless the original past-due fines have been resolved. A county must notify DMV if a fine is waived. -- Sec (b-1) and (c), Transportation Code 7

10 Indigency: Scofflaw A judge who has jurisdiction of the underlying offense may waive the additional fee of $20 if the judge makes a finding that the defendant is economically unable to pay the fee or that good cause exists for the waiver. -- Sec (i) and (j), Transportation Code Indigency: Scofflaw If a county assessor-collector is notified that the court having jurisdiction over the underlying offense has waived the past due fine or fee due to the defendant's indigency, the county may not impose the additional fee on the defendant. -- Sec (i) and (j), Transportation Code Indigency: Omni DPS may not continue to deny renewal of a person s driver s license after it receives notice that the charge on which the person failed to appear was dismissed with prejudice by motion of the prosecutor for lack of evidence. -- Sec (b), Transportation Code 8

11 Indigency: $30 Omni fee A person is not required to pay the $30 fee if: They are acquitted; The charges were dismissed with prejudice on motion of the prosecutor for lack of evidence; The failure to appear report was sent in error; or The case is closed and the failure to appear report has been destroyed under the records retention policy. -- Sec (a), Transportation Code Indigency: $30 Omni Fee No $30 Omni fee if the court having jurisdiction of the underlying offense makes a finding that the defendant is indigent. A person is presumed to be indigent if the person: is required to attend school full time under Section , Education Code; is a member of a household with a total annual income that is below 125 percent of the income level established by the federal poverty guidelines; or Indigency: $30 Omni Fee The person receives assistance from: the financial assistance program established under Chapter 31, Human Resources Code; the medical assistance program under Chapter 32, Human Resources Code; the supplemental nutrition assistance program established under Chapter 33, Human Resources Code; the federal special supplemental nutrition program for women, infants, and children authorized by 42 U.S.C. Section 1786; or the child health plan program under Chapter 62, Health and Safety Code. -- Sec (d), Transportation Code 9

12 Indigency: Effective Dates The above sections apply only to a criminal offense that occurs after Sept. 1, The following sections apply beginning Sept. 1, 2017, even if the offense itself occurred before Sept. 1, Indigency: Failure to Appear A judge may not issue an arrest warrant for the defendant's failure to appear at the initial court setting, including failure to appear as required by a citation issued under Article 14.06(b), unless certain requirements are first met, and the defendant subsequently fails to appear. -- Art (e), Code of Criminal Procedure Indigency: Failure to Appear The judge must provide by telephone or regular mail to the defendant notice that includes: a date and time, within 30 days of the date the notice is provided, when the defendant must appear before the judge; the name and address of the court with jurisdiction in the case; information regarding alternatives to the full payment of any fine or costs owed by the defendant, if the defendant is unable to pay that amount; and an explanation of the consequences defendant fails to appear before the judge if the -- Art (e), Code of Criminal Procedure 10

13 Indigency: Appearance by Defendant A defendant who receives such a notice may request an alternative date or time to appear before the judge if the defendant is unable to appear on the date and time included in the notice. -- Art (f), Code of Criminal Procedure Indigency: Appearance by Defendant A judge shall recall an arrest warrant for the defendant's failure to appear if the defendant voluntarily appears and resolves the arrest warrant before the warrant is executed. -- Art (g),Code of Criminal Procedure Indigency: Appearance Bonds A judge may require a defendant to give a personal bond to secure the defendant s appearance. -- Art , Code of Criminal Procedure A court that requires a defendant to give a personal bond under Art may not assess a personal bond fee. -- Art (a), Code of Criminal Procedure 11

14 Indigency: Appearance Bonds A judge may not require a defendant to give a bail bond as an appearance bond unless the defendant has failed to appear, and the judge determines that: the defendant has sufficient resources or income to give a bail bond; and a bail bond is necessary to secure the defendant's appearance. -- Art (a) and (b), CCP Indigency: Reconsideration of Bail Bond If, before the expiration of a 48-hour period following the issuance of an order requiring a defendant to give a bail bond, a defendant does not give a required bail bond, the judge: shall reconsider the requirement for the defendant to give the bail bond and presume that the defendant does not have sufficient resources or income to give the bond; and may require the defendant to give a personal bond. -- Art (c), Code of Criminal Procedure Indigency: Refusal to Give a Bond If the defendant refuses to give a personal bond or refuses or fails to give a bail bond (except as provided on the previous slide), the defendant may be held in custody. -- Art (d), Code of Criminal Procedure 12

15 Indigency: Inquiry when Defendant Enters Plea in Open Court During or immediately after imposing a sentence in any case where the defendant enters a plea in open court: the judge shall inquire whether the defendant has sufficient resources or income to immediately pay all or part of the fine and costs. -- Art (a-1), Code of Criminal Procedure Indigency: Determination by Judge If the judge determines that the defendant does not have sufficient resources or income to immediately pay all or part of the fine and costs, the judge shall determine whether the fine and costs should be: (1) required to be paid at some later date or in a specified portion at designated intervals; (2) discharged by performing community service; (3) waived in full or in part; or (4) satisfied through any combination of these methods. -- Art (a-1), Code of Criminal Procedure Indigency: Capias Pro Fine The court may not issue a capias pro fine for the defendant's failure to satisfy the judgment according to its terms without holding a hearing. The court must send the defendant a notice by regular mail that includes a statement of the defendant s failure to satisfy the judgment, and the time and place for the hearing. -- Art (a-2), Code of Criminal Procedure 13

16 Indigency: Capias Pro Fine The court may not issue a capias pro fine for the defendant's failure to satisfy the judgment according to its terms unless: The defendant fails to appear at the hearing; or based on evidence presented at the hearing, the court determines that the capias pro fine should be issued. -- Art (a-2), Code of Criminal Procedure Indigency: Recall of Capias Pro Fine The court shall recall a capias pro fine if, before the capias pro fine is executed: the defendant voluntarily appears to resolve the amount owed; and the amount owed is resolved in any manner authorized by Chapter 45 of the CCP. -- Art (a-2), Code of Criminal Procedure Indigency: Commitment to Jail A person placed in jail for failure to pay a fine or costs is entitled to credit of not less than $100 (rather than $50) per period specified (not less than eight hours or more than 24 hours). -- Art (a), Code of Criminal Procedure 14

17 Indigency: Community Service In the judge's order requiring a defendant to perform community service, the judge must specify: the number of hours of community service the defendant is required to perform; and the date by which the defendant must submit to the court documentation verifying the defendant's completion of the community service. -- Art (b) and (c), CCP Indigency: Community Service The judge may order the defendant to perform community service by attending: A work and job skills training program; A preparatory class for the high school equivalency examination, or similar activity; An alcohol or drug abuse program; A rehab program; A counseling program, including a selfimprovement program; A mentoring progam; or Any similar activity. -- Art (b) and (c), CCP Indigency: Community Service If the defendant is a child, and the offense occurred on school grounds, the judge may order a tutoring program as community service. -- Art (c), CCP 15

18 Indigency: Community Service The judge may order the defendant to perform community service for: a governmental entity; a nonprofit organization or another organization that provides services to the general public that enhance social welfare and the general wellbeing of the community, as determined by the judge; or an educational institution. -- Art (b) and (c), CCP Indigency: Community Service An entity that accepts a defendant to perform community service must agree to supervise, either on-site or remotely, the defendant in the performance of the community service and report on the defendant's community service to the judge. -- Art (c-1), CCP Indigency: Community Service A defendant is considered to have discharged not less than $100 (rather than $50) of fines or costs for each eight hours of community service performed. -- Art (d) and (e), CCP 16

19 Indigency: Waiver of Fines and Costs A judge may waive payment of all or part of a fine or costs imposed on a defendant if the court determines that: The defendant is indigent, does not have sufficient resources or income to pay all or part of the fine or costs, or was, at the time the offense was committed, a child (at least 10 years of age and under 17 years of age); and Discharging the fine or costs by performing community service or as otherwise authorized would impose an undue hardship on the defendant. -- Art (a), CCP Indigency: Presumption of Indigence A defendant is presumed to be indigent or to not have sufficient resources or income to pay all or part of the fine or costs if the defendant: is in the conservatorship of the Department of Family and Protective Services, or was at the time of the offense; or is designated as a homeless child or youth or an unaccompanied youth, as defined by 42 U.S.C. Section 11434a, or was so designated at the time of the offense. -- Art (b), CCP INQUESTS SB 239 (Wyatt s Law) HB 799 SB 8 SB 1599 SB

20 Parent s Right to View Body of Deceased Child A parent of a deceased child (under 18 years old) is entitled to view the child's body before a justice of the peace assumes control over the body. If the child's death occurred at a hospital or other health care facility, the viewing may be conducted at the hospital or facility. -- Art (a), Code of Criminal Procedure Parent s Right to View Body of Deceased Child A parent may not view the child's body after a justice of the peace assumes control over the body unless the parent first obtains the consent of the justice of the peace or a person acting on behalf of the justice of the peace. -- Art (b), Code of Criminal Procedure Parent s Right to View Body of Deceased Child A viewing of the body of a deceased child whose death is determined to be subject to an inquest must be conducted under the following conditions: 18

21 Parent s Right to View Body of Deceased Child The viewing must be supervised by: A peace officer, if law enforcement has assumed control over the body at the time of the viewing, or, with the officer's consent, or if LE has not assumed control of the body, by: A physician, registered nurse, or licensed vocational nurse or the justice of the peace or the medical examiner or a person acting on behalf of the justice of the peace or medical examiner. Parent s Right to View Body of Deceased Child A parent of the deceased child may not have contact with the child's body unless the parent first obtains the consent of the justice of the peace or medical examiner or a person acting on behalf of the justice of the peace or medical examiner; and -- Art (c), Code of Criminal Procedure Parent s Right to View Body of Deceased Child A person may not remove a medical device from the child's body or otherwise alter the condition of the body for purposes of conducting the viewing unless the person first obtains the consent of the justice of the peace or medical examiner or a person acting on behalf of the justice of the peace or medical examiner. -- Art (c), Code of Criminal Procedure 19

22 Parent s Right to View Body of Deceased Child A person is not entitled to compensation for performing duties on behalf of a justice of the peace under this article unless the commissioners court of the applicable county approves the compensation. -- Art (c), Code of Criminal Procedure Inquest Bench Exchange If a justice of the peace or the county judge is not available to conduct an inquest, then the justice of the peace in the precinct in which the death occurred or the county judge may request a justice of the peace of another county to conduct the inquest. -- Sec , Gov t Code; Art (c)(3), CCP Inquest Bench Exchange The justice of the peace requested must serve in a county which has inquest jurisdiction under Chapter 49 of the Code of Criminal Procedure. -- Sec , Gov t Code; Art (c)(3), CCP 20

23 Inquest Bench Exchange The person reporting a death may ask the justice of the peace or county judge to request another justice of the peace from another county to perform the inquest if no justice of the peace is available in the county where the death occurred. -- Art (c)(3), Code of Criminal Procedure Inquest Bench Exchange The justice of the peace who conducts the inquest must, not later than the fifth day after the date the inquest is initiated, transfer all information related to the inquest to the justice of the peace of the precinct in which the death occurred for final disposition of the matter. -- Sec , Gov t Code; Art (c)(3), CCP Inquest Bench Exchange The justice of the peace who conducts the inquest is not entitled to receive any compensation from the commissioners court of the county where the death occurred other than mileage. -- Sec , Government Code 21

24 Prohibited Abortion Treatment/Fetal Burial Effective 2/1/2018, a health care facility must dispose of embryonic and fetal tissue remains by Interment; Cremation; Incineration followed by interment; or Steam disinfection followed by interment. Ashes may be interred or scattered in any manner authorized by law for human remains but may not be placed in a landfill. -- Sec , Health & Safety Code Prohibited Abortion Treatment/Fetal Burial Nothing in this bill affects your inquest duties or responsibilities under Chapter 49. This bill is currently under a challenge as to its Constitutionality. Maternal Mortality DSHS is required to post on its website guidelines related to: Determining when toxicology screenings should be performed on someone whose death was related to pregnancy Determining when an inquest is needed in maternal mortality cases Completing death certificates related to pregnancy --Sec , Health & Safety Code 22

25 Unmarked Graves For unmarked graves contained within an abandoned, unknown, or unverified cemetery, a justice of the peace acting as coroner under Chapter 49, Code of Criminal Procedure, may investigate or remove remains without written order of the state registrar or the state registrar's designee. --Sec (f-1),health & Safety Code Unmarked Graves Definitions of abandoned, unknown and unverified cemeteries as well as unmarked grave are added to Sec , Health & Safety Code MAGISTRATION SB 1849 (Sandra Bland Act) SB 1326 HB 3165 SB 1576 SB 4 23

26 Mental Illness or Intellectual Disability: Notice to the Magistrate Not later than 12 hours [formerly 72 hours] after receiving credible information that a defendant charged with a Class B or higher offense has a mental illness or intellectual disability, the sheriff or jailer shall provide written or electronic notice to the magistrate. -- Art (a)(1), Code of Criminal Procedure Mental Illness or Intellectual Disability: Notice to the Magistrate SB 1326 requires that this notice to the magistrate contain all information related to the determination, including details of the defendant s behavior and the results of any assessment given to the defendant. -- Art (a)(1), Code of Criminal Procedure Mental Illness or Intellectual Disability: Assessment If the defendant fails or refuses to submit to the collection of information, the magistrate may order the defendant to submit to an examination in a jail or other suitable place for a reasonable period not to exceed 72 hours [previously it was 21 days] -- Art (a)(3), Code of Criminal Procedure 24

27 Mental Illness or Intellectual Disability: Assessment Except as permitted by the magistrate for good cause, the written assessment shall be provided to the magistrate: Not later than 96 hours after an order was issued ordering the assessment if the defendant is held in custody; or Not later than the 30 th day after the order was issued for a defendant released from custody. [previously it was 30 days for all defendants.] -- Art (b), Code of Criminal Procedure Diversion for Treatment Law enforcement shall make a good faith effort to divert a person suffering a mental health crisis or suffering from the effects of substance abuse to a proper treatment center in the agency's jurisdiction if: -- Art (a), Code of Criminal Procedure Diversion for Treatment There is an available and appropriate treatment center in the agency's jurisdiction; it is reasonable to divert the person; the offense the person is accused of is a misdemeanor, other than a misdemeanor involving violence; and the mental health crisis or substance abuse issue is suspected to be the reason the person committed the alleged offense. -- Art (b), Code of Criminal Procedure 25

28 Diversion for Treatment Diversion does not apply to a person who is accused of an offense under Section 49.04, , 49.05, 49.06, , 49.07, or 49.08, Penal Code [DWI offenses]. -- Art (b), Code of Criminal Procedure Mental Illness or Intellectual Disability: Release on Personal Bond A magistrate shall release a defendant on personal bond unless good cause is shown otherwise if the following five conditions apply: 1) The defendant is not charged with and has not been previously convicted of a violent offense; 2) The defendant is examined under Article 16.22; Mental Illness or Intellectual Disability: Release on Personal Bond 3) The expert: concludes that the defendant has a mental illness or intellectual disability and is nonetheless competent to stand trial; and recommends mental health or intellectual disability treatment; 26

29 Mental Illness or Intellectual Disability: Release on Personal Bond 4) The magistrate determines, in consultation with the local mental health or intellectual and developmental disability authority, that mental health or intellectual disability services for the defendant are available; and Mental Illness or Intellectual Disability: Release on Personal Bond 5) After considering all the circumstances, a pretrial risk assessment, if applicable, and any other credible information provided by a prosecutor or the defendant, the magistrate determines that release on personal bond would reasonably ensure the defendant's appearance in court and the safety of the community and the victim of the alleged offense. -- Art (b), Code of Criminal Procedure Mental Illness or Intellectual Disability: Reports to OCA The magistrate shall submit to OCA on a monthly basis the number of written assessments provided to the court under Art (a)(1)(B). -- Art (e), Code of Criminal Procedure 27

30 Release of Magistration Record Allows counsel for the defendant to obtain a copy of the record of the magistration on payment of a reasonable amount to cover the cost of copying. If the defendant is indigent, the court shall provide a copy to the defendant without charge. Applies to any magistration occurring after 9/1/17, regardless of date of the offense -- Art (a) and (f), Code of Criminal Procedure Personal Bond Pretrial Release Office Where there is an arrest on an out-of-county warrant, and the county that issued the warrant does not take charge of the arrested person before the 11th day after the person is committed to the jail of the county in which the person is arrested, then a magistrate in the county where the person was arrested shall: Personal Bond Pretrial Release Office Release the arrested person on personal bond without sureties or other security; and Forward the personal bond to: the sheriff of the county where the offense is alleged to have been committed; or the court that issued the arrest warrant. Applies to any defendant arrested after 9/1/17, regardless of date of the offense -- Art , Code of Criminal Procedure 28

31 No Personal Bond: Civilly Committed Sexually Violent Predator A magistrate may not release on personal bond a defendant, who at the time of the commission of the charged offense is civilly committed as a sexually violent predator under Chapter 841, Health and Safety Code -- Art (b-1), Code of Criminal Procedure Enforcement of Immigration Laws A law enforcement agency that has custody of a person subject to an immigration detainer request issued by ICE shall: Comply with any request made in the detainer request; and Inform the person that they are being held pursuant to an immigration detainer request issued by ICE -- Art , Code of Criminal Procedure Enforcement of Immigration Laws This is not required if the person has provided proof that they are a citizen of the U.S. or has lawful immigration status, such as a Texas driver s license or government issued I.D. -- Art , Code of Criminal Procedure 29

32 Enforcement of Immigration Laws A sheriff, police chief or constable, or a person who has primary authority for administering a jail commits a Class A misdemeanor if they have custody of a person subject to an immigration detainer request issued by ICE and knowingly fails to comply with the request. -- Section 39.07, Penal Code Enforcement of Immigration Laws This bill does not materially affect your duties as a magistrate and is currently subject to a challenge in federal court as to its constitutionality. You should already be inquiring into each defendant s nationality for purposes of consular notification Compliance with ICE detainers or other orders is the responsibility of law enforcement, not the magistrate However, you may become aware of criminal offenses in relation to this bill and must decide how you wish to handle those situations Enforcement of Immigration Laws Surety surrender process is amended to make it clear that a surety is not relieved of liability by delivering an affidavit stating that the defendant is in federal custody if the accused is in federal custody to determine whether the accused is lawfully present in the United States. -- Art (a-1), Code of Criminal Procedure 30

33 CRIMINAL PROCEDURE HB 1266 HB 557 HB 681 HB 3167 Continuance in Criminal Case The judge shall grant a continuance of a criminal action if the trial court sets a hearing or trial without giving at least three business days notice of the hearing or trial. The motion for continuance can be written or oral. -- Art , Code of Criminal Procedure Continuance in Criminal Case Does not apply during the period between the date the trial begins and the date the judgment is entered. Applies to any case pending before the court on 9/1/17, regardless of offense date. -- Art , Code of Criminal Procedure 31

34 Expunction A justice court may now expunge all records and files relating to the arrest of a person for an offense punishable by fine only. These provisions apply to arrests made at any time, except that expunctions after acquittal only apply to trials that begin on or after 9/1/ Art (b) and (b-1), CCP; Sec (e), Gov t Code Expunction The records may be expunged if: the person is tried and acquitted of the offense, the person has been released, and no charge is pending, at least 180 days have elapsed since arrest, and the person was not charged with any other offense resulting from the arrest, or if a prosecutor recommends expunction before the person is tried. -- Art (a), (b) and (b-1),code of Criminal Procedure; -- Sec (e), Gov t Code Expunction On acquittal the trial court shall advise the person of the right to expunction. At the request of the acquitted person or of the prosecutor, the trial court shall enter an order of expunction not later than the 30 th day after the date of the acquittal. -- Sec. 1, Art , Code of Criminal Procedure 32

35 Expunction For a fine only offense a person who is entitled to expunction may file an ex parte petition for expunction in a justice court in the county in which: (1) the petitioner was arrested; or (2) the offense was alleged to have occurred. -- Sec. 2(a-1), Art , Code of Criminal Procedure Expunction The petition must be verified and contain information about the petitioner, offense, arresting agency, and a list of all entities the petitioner believes has information about the arrest. -- Sec. 2(b), Art , CCP This is not new law, it just newly applies to justice courts. Expunction Fee of $100 for filing an ex parte petition for expunction. But the fee is waived if: The person was acquitted (unless part of a criminal episode of two or more offenses under Section 3.01, Penal Code); and The petition is filed not later than the 30 th day after the date of the acquittal. -- Art (a-1) and (b), Code of Criminal Procedure 33

36 Expunction Court that grants an expunction may order that any fee be partially or completely returned to the petitioner. -- Art (c), Code of Criminal Procedure Expunction The order of expunction is prepared by the defendant s attorney if the defendant was represented The order is prepared by the prosecutor if the defendant was pro se or if the prosecutor requested the expunction -- Art , Code of Criminal Procedure Confidentiality of Records Relating to Fine Only Offenses Five years after the date of a final conviction or of a dismissal after deferral of disposition, records relating to that offense held by the court are confidential and may not be disclosed. Applies to disclosure of information starting 9/1/17, applies to offenses occurring before, on, or after 9/1/ Art (a), Code of Criminal Procedure 34

37 Confidentiality of Records Relating to Fine Only Offenses These records, files and information may be open to inspection only by: judges or court staff; a prosecutor; DPS; a criminal justice agency for a criminal justice purpose; the defendant or the defendant's counsel; if the offense is a traffic offense, an insurance company or surety company; or for the purpose of complying with a requirement under federal law or if federal law requires the disclosure as a condition of receiving federal highway funds. -- Art (a), Code of Criminal Procedure Confidentiality of Records Relating to Fine Only Offenses This does not apply to records, files, and information that relate to an offense that is sexual in nature, as determined by the holder of the records, files, or information. -- Art (a), Code of Criminal Procedure Collection Improvement Program CIP is now mandatory for counties with population of 100k or more (was 50k), effective June 1, Art (b), Code of Criminal Procedure 35

38 TRAFFIC LAW HB 62 SB 1187 Texting Ban It is an offense for an operator to use a portable wireless communication device: to read, write, or send an electronic message while operating a motor vehicle unless the vehicle is stopped. -- Sec , Transportation Code Texting Ban To be charged with the offense, the behavior must: be committed in the presence of or within the view of a peace officer or be established by other evidence. -- Sec , Transportation Code 36

39 Texting Ban Electronic message means data that is read from or entered into a wireless communication device for the purpose of communicating with another person. -- Sec , Transportation Code Texting Ban Affirmative defense if the operator used the wireless communication device: In conjunction with a hands-free device; To navigate using a GPS; To report illegal activity, summon emergency help or enter information into an app that provides information concerning traffic and road conditions; Texting Ban Affirmative defense if the operator used the wireless communication device (cont.): To read an electronic message that the person reasonably believes concerns an emergency; Affixed to the vehicle to relay information in the course of the operator s occupational duties between the operator and a dispatcher or a digital network or app; or To activate a function that plays music. -- Sec (c), Transportation Code 37

40 Texting Ban Offense is a misdemeanor punishable by a fine of at least $25 and not more than $99 Unless shown at trial that the defendant has been previously convicted of at least one offense, In which case the fine is at least $100 and not more than $ Sec (e) and (f), Transportation Code Texting Ban Offense is a Class A misdemeanor punishable by a fine not to exceed $4,000 and confinement in jail for up to one year If it is shown at trial that the defendant caused the death or serious bodily injury of another person. -- Sec (e) and (f), Transportation Code Texting Ban Officer who stops a motor vehicle for an alleged violation may not take possession of or otherwise inspect the device unless authorized by the CCP or other law. -- Sec (i), Transportation Code 38

41 Texting Ban Preempts all local ordinances, rules or regulations relating to the use of a portable wireless communication device to read, write or send an electronic message. -- Sec (j), Transportation Code Texting Ban Officer must issue the violator a citation to appear instead of taking them into custody if they sign a promise to appear (just like speeding and open container). -- Sec , Transportation Code Texting Ban Person under 18 years of age may not operate a motor vehicle while using a wireless communication device, except in case of emergency. This covers more than just electronic messaging -- Sec , Transportation Code 39

42 Texting Ban Person under 17 years of age holding a restricted motorcycle or moped license may not operate a motorcycle or moped while using a wireless communication device, except in case of emergency. Again, more restrictive than law for adults. -- Sec , Transportation Code Texting Ban Like the new texting offense, these offenses are misdemeanors punishable by a fine of at least $25 and not more than $99 Unless shown at trial that the defendant has been previously convicted of either offense, In which case the fine is at least $100 and not more than $ Sec (g), Transportation Code Texting Ban A municipality, county or other political subdivision that prohibits the use of a wireless communication device while operating a motor vehicle Must post a sign wherever a state highway, U.S. highway or interstate highway enters the political subdivision Stating that the use is prohibited and whether or not a hands free device may be used. -- Sec (b-2), Transportation Code 40

43 Operating a Motor Vehicle Without Insurance A peace officer may not issue a citation for no insurance unless he attempts to verify through the insurance verification process (Subchapter N of Chapter 601) that insurance covers the vehicle and he is unable to make that verification. Effective June 1, Sec (c), Transportation Code Operating a Motor Vehicle Without Insurance A citation for no insurance must include an affirmative indication that the peace officer was unable to verify financial responsibility for the vehicle through the verification program under Subchapter N. Effective June 1, Sec (e), Transportation Code Operating a Motor Vehicle Without Insurance DPS may not assess a surcharge if the person proves to DPS under Section (b) that the person had financial responsibility at the time the offense was alleged to have occurred. Effective June 1, 2017, applies to surcharges previously assessed. -- Sec (a) and (a-1), Transportation Code 41

44 ALCOHOL OFFENSES SB 966 HB 2059 Consumption or Possession of Alcohol by a Minor The offense of consumption or possession of alcohol by a minor does not apply to a minor who reports a sexual assault of another person or is a victim of a sexual assault. -- Secs (f),(g), and (h), (e),(f), and (g), ABC Consumption or Possession of Alcohol by a Minor The sexual assault must be reported to a health care provider treating the victim, a law enforcement official, including campus police, or a Title IX coordinator responsible for responding to reports of sexual assault. -- Secs (f),(g), and (h), (e),(f), and (g), ABC 42

45 Expunction of Alcohol Related Offenses by a Minor Any person placed under a custodial or noncustodial arrest for not more than one violation of the ABC while a minor and who was not convicted of the violation may apply to the court in which the person was charged to have the records of the arrest expunged. Must be at least 21 years old to be eligible. -- Sec (d), Alcoholic Beverage Code Expunction of Alcohol Related Offenses by a Minor The application must contain the applicant's sworn statement that the applicant was not arrested for a violation of the ABC other than the arrest the applicant seeks to expunge. -- Sec (d), Alcoholic Beverage Code Expunction of Alcohol Related Offenses by a Minor If the court finds the applicant was not arrested for any other violation of the ABC while a minor, the court shall order all complaints, verdicts, prosecutorial and law enforcement records, and other documents relating to the violation to be expunged from the applicant's record. -- Sec (d), Alcoholic Beverage Code 43

46 Expunction of Alcohol Related Offenses by a Minor The court shall charge an applicant a fee in the amount of $30 for each application for expunction. These procedures are separate and distinct from the expunction procedures under Chapter 55 of the CCP. -- Sec (e) and (f), Alcoholic Beverage Code NEW CRIMINAL OFFENSES HB 29 HB 9 HB 1935 Sexually Oriented Businesses Must post signs directing victims of human trafficking to resources. The AG has the authority to develop rules related to the content and appearance of the signs. Is a Class C misdemeanor to fail to do so Effective March 1, 2019 effective date missing from book text. -- Sec , Business & Commerce Code 44

47 Cybercrimes New offenses for altering data in transmission, installing ransomware, or decrypting encrypted personal information. Only a Class C misdemeanor if no intent to harm or defraud or there was intent but damages are undeterminable or <$ Secs and , Penal Code Location-Restricted Knife Instead of declaring some knives to be illegal weapons, classifies knives with blades longer than 5.5 as location-restricted knives and adds locations where these knives may not be possessed. Class C misdemeanor to possess at a restricted location, unless certain school-related locations. -- Secs (6), 46.02, and 46.03, Penal Code CIVIL PROCEDURE SB 42 HB 1066 (eff. 6/15/17) 45

48 Judicial and Court Personnel Training Fee Anytime the standard civil filing fee is collected, $5 is added for the Judicial and Court Personnel Training Fee Fee may be waived, like others, if filer is indigent Fee goes into fund for judicial education on court security issues. --Sec , Government Code Collection of Judgments Effective immediately, a turnover order may now be issued, without the previous necessity of a determination that the property cannot readily be attached or levied on by ordinary legal process. -- Sec (a), Civil Practice and Remedies Code Collection of Judgments The change in law applies to the collection of any judgment, regardless of whether the judgment was entered before, on, or after the effective date of the Act. 46

49 Collection of Judgments Currently, there is discussion over whether justice courts can issue turnover orders. They could be seen as injunctive relief But TRCP may authorize justice courts to issue them, even if they are injunctive Collection of Judgments Remember regarding turnover orders: Do not have to grant the fees requested Do not have to appoint the receiver requested Have broad authority regarding the scope of power/duties of the receiver Judgment creditor may apply only to the court issuing judgment for a turnover order EVICTIONS HB 2552 HB 3879 HB

50 Eviction Due to Prostitution Notwithstanding a provision in a lease to the contrary, a commercial tenant's right of possession terminates and the landlord has a right to recover possession of the leased premises if: the tenant is using the premises for the purposes of prostitution or promotion of prostitution or trafficking of persons Sec (a), Property Code Eviction Due to Prostitution A landlord who reasonably believes a commercial tenant is using the leased premises or allowing the leased premises to be used for prostitution: may file a forcible detainer suit seeking possession of the premises and unpaid rent, including rent for any period of occupancy after the tenant's right of possession terminates. -- Sec (b), Property Code Eviction Due to Prostitution The landlord is not required for purposes of a forcible detainer suit authorized by this section: to give a notice of proposed eviction or a notice of termination before giving notice to vacate; or to give the tenant more than three days' notice to vacate before filing the suit, regardless of notice to vacate provisions in the lease. -- Sec (c), Property Code 48

51 Eviction Due to Prostitution A suit brought by the attorney general, or a district, county, or city attorney, alleging that a common nuisance is being maintained on the leased premises due to prostitution or trafficking is: prima facie evidence that the tenant's right of possession has terminated and the landlord has a right to recover possession of the premises. -- Sec (d), Property Code Eviction Due to Prostitution A final, nonappealable determination by a court that a common nuisance is being maintained on the leased premises due to prostitution or trafficking creates: an irrebuttable presumption that the tenant's right of possession has terminated and the landlord has a right to recover possession of the premises. -- Sec (e), Property Code Appeal in an Eviction Case In an appeal of an eviction suit for nonpayment of rent in a county or district court: an owner of a multifamily residential property may be represented by the owner's authorized agent, who need not be an attorney, or if the owner is a corporation or other entity, by an employee, owner, officer, or partner of the entity, who need not be an attorney. -- Sec (b), Property Code 49

52 Residential Tenant s Right to Summon Police A tenant is entitled to summon police based on a reasonable belief that an individual is in need of intervention or emergency assistance [used to be in response to family violence ] -- Sec (a), Property Code Residential Tenant s Right to Summon Police You generally won t have this issue in your court, but could have landlords attempting to evict tenants for summoning police, which should not be allowed. A provision in a lease waiving this right is void. -- Sec (b), Property Code WRIT OF RETRIEVAL SB

53 Writ of Retrieval The title is changed from order to writ, which may make it easier for some constables to recover fees associated with these writs. It is no longer required that dependents of the applicant be minors to consider the dependents belongings. -- Sec. 24A.002(b)(3), Property Code Writ of Retrieval Application for a writ of retrieval may now state either that the occupant has denied the applicant access to the residence or the occupant poses a clear and present danger of family violence to the applicant or the applicant s dependent. -- Sec. 24A.002(b), Property Code Writ of Retrieval Adds copies of electronic records containing legal or financial documents to the list of items that may be recovered through a writ of retrieval. -- Sec. 24A.002(b)(3)(I), Property Code 51

54 Writ of Retrieval Allows a JP to issue a temporary ex parte writ of retrieval without providing notice and a hearing to the occupant if the JP finds: The applicant meets the requirements for issuance of the writ; The occupant poses a clear and present danger of family violence to the applicant or a dependent; and The personal harm to be suffered by the applicant or the dependent will be immediate and irreparable if the application is not granted. -- Sec. 24A.0021(a), Property Code Writ of Retrieval JP may recess a hearing on an ex parte application to notify the current occupant by telephone that the current occupant may attend the hearing or bring to the court the personal property listed in the application. -- Sec. 24A.0021(c), Property Code Writ of Retrieval The justice of the peace shall reconvene the hearing before 5 p.m. that day regardless of whether the current occupant attends the hearing or brings the personal property to the court. -- Sec. 24A.0021(c), Property Code 52

55 Writ of Retrieval A JP issuing an ex parte writ may waive the bond requirement. -- Sec. 24A.0021(b), Property Code A temporary ex parte writ must state the period, not to exceed five days, during which the writ is valid. -- Sec. 24A.0021(d), Property Code COURT SECURITY SB 42 SB 510 Court Security OCA must establish a judicial security division to provide guidance to state court personnel on improving security for each court. OCA must develop a procedure to notify officials of judges, judges spouses and family members whose personal information must be kept from public records. -- Secs , , Government Code 53

56 Court Security Local administrative judge shall establish a court security committee to adopt security policies and procedures for the courts served by the local administrative district judge. -- Sec , Government Code Court Security Committee must have one judge of each type of court in the county other than a municipal court or a municipal court of record. Committee may make recommendations to the commissioners court concerning use of resources and expenditures for court security. -- Sec , Government Code Court Security On receiving notice from OCA of a judge s qualifications for office, the Ethics Commission must remove or redact from any financial statements available to the public the residence address of a judge or the spouse of a judge. -- Sec , Government Code 54