Texas Justice Court Judges Association Professional Development October 16-17, 2017 SB 1913 and HB 351: Procedural Changes and Satisfaction of Judgments Presented by: Janet Marton Attorney at Law Janet.Marton@gmail.com
SB 1913 and HB 351, effective 9-1-2017 FORMS ARE SUGGESTIONS ONLY CONSULT YOUR COUNTY ATTORNEY BEFORE USING OR ADOPTING SUGGESTED FORMS OR SAMPLE LANGUAGE FOR YOUR OWN USE
HB 351 and SB 1913 Assumptions: Local courts operating as debtors prisons Tens of thousands of people are booked into county jails each year for fine-only offenses alone, and while in jail, they lose their jobs, and housing, and are driven deeper into poverty Is there a way better to serve the interest of the poor while maintaining public safety and order?
HB 351 and SB 1913 Prior to 9-1, on default in payment of fines and costs, judges did not make use of the capias pro fine and community service Intent and purpose: To provide new tools and procedures to hold low income people accountable without jail time
Code of Criminal Procedure Art. 14.06 Citation must contain information regarding alternatives to full payment of any fine or costs assessed on conviction of a defendant who is unable to pay that amount Art. 27.14(b) (Plea delivered in person or by mail) Court must include in the reply, information regarding the alternatives to the full payment of any fine and costs if the defendant is unable to pay that amount
Information regarding alternatives to full payment For example: If you are required to pay a fine and costs and you do not have sufficient resources or income immediately to pay all or part of the fine and costs, you may be allowed to pay at a later date or to make payments at designated intervals; and in certain circumstances, you may be allowed to perform community service, or the payment of all or part of a fine or costs may be waived. For more detailed information, see Article 45.041, and Articles 45.049 et seq, of the Texas Code of Criminal Procedure.
Chapter 45: Art. 45.014 Issuance of arrest warrants Applicable to warrants issued on or after 9-1-2017 Judge may not issue arrest warrant for failure to appear at initial court setting UNLESS: Defendant is notified: of a date and time (within 30 days of notice) when defendant must appear before the judge of information regarding alternatives to full payment if defendant unable to pay of the consequences of failure to appear and, defendant fails to appear Notice give by TELEPHONE or REGULAR MAIL
Chapter 45: Art. 45.014 Issuance of arrest warrants Applicable to warrants issued on or after 9-1-2017 Court records indicate that you have failed to appear as required by a notice to appear in court to answer for an offense punishable by fine only. You are ORDERED to appear in Justice Court Precinct Place, at,, Texas, on, at o clock.m. (Date must be within 30 days of the date of notice.) If you are unable to appear on this date, you may contact the Court to request an alternative date or time. Failure to appear as required may result in the issuance of an arrest warrant. The court also has the option to notify the Department of Public Safety to deny the renewal of your driver s license, and to notify the Texas Department of Transportation to deny the renewal of your vehicle s registration. If you are required to pay a fine and costs and you do not have sufficient resources or income immediately to pay all or part of the fine and costs, you may be allowed to pay at a later date or to make payments at designated intervals; and in certain circumstances, you may be allowed to perform community service, or the payment of all or part of a fine or costs may be waived.
Chapter 45: Art. 45.014 Issuance of arrest warrants Applicable to warrants issued on or after 9-1-2017 Defendant may to request alternative date or time to appear Judge required to recall the arrest warrant if the defendant voluntarily appears and makes a good faith effort to resolve the warrant before it is executed
Chapter 45: Art. 45.016 Personal Bond; Bail Bond Applicable to bonds executed on or after 9-1-2017 Judge is allowed to require defendant to give a PERSONAL BOND to secure appearance Judge may not require defendant to give a bail bond either instead of or in addition to a personal bond, unless: defendant fails to appear, and judge determines defendant has sufficient income to give bail, and bail is necessary to secure appearance
Chapter 45: Art. 45.016 Personal Bond; Bail Bond Applicable to bonds executed on or after 9-1-2017 If a defendant in custody has not made bail within 48 hours: judge must reconsider requirement of bond, judge must presume defendant does not have sufficient income to give bond Judge may require personal bond If defendant refuses to give a personal bond (with required information and oath) or refuses to give a bail bond, defendant may remain in custody
Chapter 45: Art. 45.041 Judgment Applies to sentencing procedures before, on or after 9-1-2017 Now judge has duty to inquire as to defendant s ability to pay and to determine how judgment will be discharged When defendant is in open court, immediately after imposing sentence, judge must inquire of the defendant whether the defendant has sufficient resources or income immediately to pay all or part of the fine and costs
Chapter 45: Art. 45.041 Judgment Applies to sentencing procedures before, on or after 9-1-2017 The judge must determine if the defendant is able to pay all of the fine and costs, the judge may direct payment: when sentence pronounced, at some later date, or in specified portions at designated intervals
Chapter 45: Art. 45.041 Judgment Applies to sentencing procedures before, on or after 9-1-2017 The judge must determine if the defendant does not have sufficient resources or income immediately to pay all or part of fine and costs, and direct: payment of fine and costs at some later date, or in installments, discharged by performing community service; waived in full or in part; satisfied through any combination of alternatives
Chapter 45: Art. 45.041 Judgment Applies to sentencing procedures before, on or after 9-1-2017 The inquiry: does the defendant have sufficient resources or income to immediately pay all of part of the fine and costs, or does the defendant have insufficient resources or income immediately to pay all or part of the fine and costs?
Discharging the Judgment Simple questions: Can you pay today? Can you pay something toward the fine and costs? Will you be able to pay, i.e. before the end of the day, week, month? Will you be able to pay something i.e. before the end of the day, week, month?
Discharging the Judgment Defendant can pay all of the fine and costs: order defendant to pay immediately Judgment: On this date, the defendant waived a trial by jury and pleaded guilty no contest. It is adjudged that the defendant is guilty and punishment is a fine of $. It is ORDERED that the State of Texas recover the amount of the fine and all costs from defendant, for which let execution issue.
Discharging the Judgment Defendant does not have all of the money: order defendant to pay the fine and costs at a later date or in installments The judgment may read: It is further ORDERED that Defendant discharge the fine and costs in the following manner: Pay the total amount of the fine and costs on or before and in default of such payment, appear in this court on, at.m. Pay the total amount of the fine and costs in installments of $ each, with the first installment due and payable on, and a like installment due and payable on the day of each month thereafter until fully paid.*
Discharging the Judgment (Community Service by Child) Art. 45.0492 (HB 350 version) Judge may allow a defendant who is a child to elect to discharge fine and costs by performing community service child and parent, if available, must sign election election must be maintained by court copy of election must be delivered to child Any child may elect; requirement that offense have occurred in a building or on grounds of school does not apply
Discharging the Judgment (Community Service by Child) Art. 45.0492 (HB 350 version) Allowable community service options: attending a work and job skills training program, attending a preparatory class for the high school equivalency examination, attending an alcohol or drug abuse program, attending a rehabilitation program, attending a counseling program, including a selfimprovement program, attending a mentoring program, attending a tutoring program, or attending any similar activity
Discharging the Judgment (Community service by child) Community service programs may be offered by: a governmental entity, a nonprofit organization, another organization that provides services to the general public that enhance social welfare and the general well-being of the community as determined by the judge*, or an educational institution *Canon 2B Judge may not use judicial office to advance private interest of judge or others
Discharging the Judgment (Community service by child) Order requiring community service must: specify no more than 16 hours per week* specify the date by which proof of completion must be submitted to court *More hours may be allowed but only if judge determines additional hours would not impose undue hardship on child or child s family Defendant earns $100 per each 8 hours of community service performed Provider must agree to supervise defendant either on-site or remotely Provider must agree to report to judge
Discharging the Judgment (Community service by child) Providers exempt from liability: a sheriff or employee of the department, a county commissioner, a county employee, the county judge, a justice of the peace, a municipal court judge, an officer or employee of a political subdivision, or an entity that accepts the child to perform community service Does not protect from an intentional, grossly negligent, or reckless act or failure to act
Chapter 45: Art. 45.041 Judgment Applies to sentencing procedures before, on or after 9-1-2017 Will the defendant be able to pay a part of the fine and costs at a later date? Will the defendant be able to pay a part of the fine and costs in payments? Is the defendant able to raise the money, or does the defendant have future income from some source? Is the defendant employed? What are the defendant s work hours? Is the defendant physically able to perform community service work that involves labor? Is the defendant qualified to perform clerical or other community service work? Is the defendant responsible for the care of dependents? Does the defendant have transportation?
Chapter 45: Art. 45.041 Judgment Applies to sentencing procedures before, on or after 9-1-2017 Defendant who can pay any part of the fine and costs should: pay at some later date or in specified portions at designated intervals; and if appropriate, discharge the remainder by performing community service under (Art. 45.049
Chapter 45: Art. 45.041 Judgment Applies to sentencing procedures before, on or after 9-1-2017 Defendant who has insufficient resources or income to pay the fine and costs should: discharge the all or part of the fine and costs by performing community service under (Art. 45.049 Court must specify number of hours to be performed, and date by which defendant must present documentation verifying completion
Chapter 45: Art. 45.091 Waiver of payment Applies to sentencing procedures before, on or after 9-1-2017 If defendant is unable to pay the fine and costs, or perform community service: Judge may waive payment of all or part of the fine and costs BUT ONLY AFTER the court determines: defendant is indigent or does not have sufficient resources or income to pay all or part of the fine or costs, or defendant was a child at the time the offense was committed and discharging the fine or costs would impose an undue hardship on defendant
Chapter 45: Art. 45.091 Waiver of payment Applies to sentencing procedures before, on or after 9-1-2017 Presumption of indigency in Art. 45.0491: Defendant is, or was at the time of the offense, a ward of the State (in conservatorship of Department of Family and Protective Services) or Defendant is, or was at the time of the offense, a homeless child or unaccompanied youth (42 U.S.C. 1143a)
Discharging the Judgment (Indigent defendant) Art. 45.0491 Guidance in defining indigency Dictionary impoverished; at a level of poverty in which real hardship and deprivation are suffered and comforts of life are wholly lacking Local Government Code Section 133.002 a person who earns not more than 125% of income established by Federal Poverty Guidelines 2017 Federal Poverty Guidelines http://aspe.hhs.gov/poverty-guidelines County s Indigent Defense Plan
Discharging the Judgment (Indigent defendant) Art. 45.0491 Guidance in defining indigency Presumptions of Indigency Transportation Code Section 706.006 child required to attend school; member of household with income less than 125% of Federal Poverty Guidelines, person receiving certain government assistance Code of Criminal Procedure Art. 45.0491- ward of state, homeless child or youth or unaccompanied youth
Discharging the Judgment (Indigent defendant) Art. 45.0491 Document findings For example: On this date, having been found guilty and a sentence imposed, the defendant appeared before the court; and after inquiring whether the defendant had sufficient resources or income immediately to pay all or part of the fine and costs, the Court finds that the defendant: is indigent and that discharging the fine and costs by community service would work an undue hardship, and it is ORDERED that payment of the fine and costs is waived.
Discharging the Judgment (Defendant unable to pay) Other discharge options: has sufficient resources and income to pay the fine and costs, and the Defendant is ORDERED to pay the fine and costs immediately. has sufficient resources and income to pay the fine and costs but not immediately, and the Defendant is ORDERED to pay the fine and costs on or before and if this amount is not paid when due, the Defendant shall appear in this Court on the Court s next business day at.m. has sufficient resources and income to pay the fine and costs but not immediately, and the Defendant is ORDERED to pay the fine and costs in installments of $ each, with the first installment payable on, with a like installment payable on the day of each month thereafter until the fine and costs are paid in full; if any installment is not paid when due, the Defendant shall appear in this Court on the Court s next business day at.m.
Discharging the Judgment (Defendant unable to pay) Other discharge options: has sufficient resources and income to pay a only part of the fine and costs, and the Defendant is ORDERED to pay the amount of $ on or before, which payment shall be applied first to the discharge of the costs and then to the discharge of the fine, and if this amount is not paid when due, the Defendant shall appear in this Court on the Court s next business day at.m., and, Defendant is further ORDERED to discharge the remainder of the fine and costs by performing hours of community service. or The Court further finds that the defendant does not have sufficient funds or income to pay the remainder of the fine and costs, and that discharging the remainder by community service would work an undue hardship, and it is ORDERED that payment of the remainder of the fine and costs is waived.
Art. 45.045 Capias Pro Fine Applies to a capias pro fine issued on or after 9-1-2017 Capias pro fine: A writ issued after judgment and sentence for unpaid fines and costs, directed to any Texas peace officer, commanding the officer to arrest the defendant and bring the defendant before the court immediately, or if the defendant cannot be brought before the court immediately, to place the defendant in jail until the business day following the date of arrest The capias pro fine must state the amount of the judgment
Art. 45.045 Capias Pro Fine Applies to a capias pro fine issued on or after 9-1-2017 Court cannot issue a capias pro fine without first holding a hearing on the defendant s ability to satisfy the judgment Notice of the hearing is sent to defendant by regular mail: includes a statement that the defendant has failed to satisfy the judgment according to its terms, and sets out the date and time of the hearing on the defendant s failure to satisfy the judgment
Art. 45.045 Capias Pro Fine Applies to a capias pro fine issued on or after 9-1-2017 Court must make one of the following findings: that defendant failed to appear at the hearing, or that based on the evidence presented at the hearing, a capias pro fine should issue Court is required to recall a capias pro fine if, before execution, the defendant voluntarily appears and resolves the amount owed in any manner authorized, i.e. payment, community service, waiver, or any combination
Art. 45.045 Capias Pro Fine Applies to a capias pro fine issued on or after 9-1-2017 On arrest, defendant will immediately be brought before the court issuing the capias pro fine If the court issuing the capias pro fine is unavailable, the officer may take the defendant to another justice of the peace in the county, or a county criminal law magistrate with jurisdiction of Class C misdemeanors
Art. 45.045 Capias Pro Fine Applies to a capias pro fine issued on or after 9-1-2017 Judge s duty is to inquire as to why the judgment was not satisfied and as to defendant s circumstances: Is the defendant indigent or not? Did the defendant fail to make a good faith effort to discharge the judgment? Did the defendant make a good faith effort to complete community service, if ordered to do so? Was the defendant able to discharge the judgment without experiencing any undue hardship?
Art. 45.045 Capias Pro Fine Applies to a capias pro fine issued on or after 9-1-2017 Findings of the court must be in writing For example: After examining the defendant and considering the testimony and evidence, the court determines that: the defendant is not indigent and has failed to make a good faith effort to discharge the fine and costs as ordered. the defendant is indigent but could have discharged the fine and costs by performing community service as ordered, without experiencing any undue hardship.
Art. 45.046 Commitment Only if the court makes these findings can the defendant be ordered to confinement in the county jail until the fine and costs owed are discharged by law specify a period of 8-24 hours for which the defendant will earn $100 toward the satisfaction of the fine and costs (Art. 45.048) A certified copy of the judgment, sentence, and order is sufficient to authorize the confinement of the defendant The court may issue a commitment
Art. 45.046 Commitment If the court does not make these findings, the judge must once again, determine the defendant s ability to satisfy all or a part of the fine and costs owed If the court finds that the defendant is indigent, the court may waive the fine and costs The defendant is indigent and that discharging the fine and costs by community service would work an undue hardship, and it is ORDERED that payment of the fine and costs is waived. This can be a repetitive process! Circumstances change!
Transportation Code 502.010 Applies to offense committed on or after 9-1-2017 County Scofflaw Program (Refusal to register vehicles) For an offense committed on or after 9-1-2017, information about the past due status of a fine expires on the 2 nd anniversary of the date the information as provided and may not be used to refuse registration after that date Once the initial information is received, subsequent information about other fines imposed that are past due before the 2 nd anniversary may not be used to refuse registration unless the person has satisfied the original past due debt, or has perfected an appeal of the case contesting payment of the fine Judge may waive the $20 fee on a finding of economic inability to pay, or that good cause exists for the waiver
Transportation Code 706.006 Applies to offense committed on or after 9-1-2017 Denial of Renewal of Driver s License (FTA) The defendant is not required to pay the $30 administrative fee if the charge was dismissed with prejudice by motion of the state based for insufficient evidence Court may have to identify the basis of a dismissal) DPS may not continue to deny renewal if charge dismissed on motion of state for lack of evidence If the court finds the person indigent, the court may not require the person to pay the $30 administrative fee Presumption of indigency is included in statute
Consider: Collection Contracts Amendment to Art. 103.0031 affects cases pending that have not yet been adjudicated. A private attorney or a public or private vendor providing contractual collection services to a county who is sending a communication to an accused person regarding the amount of payment that is acceptable to the court under the court s policy for resolution of a case must include: (1) notice of the person s right to enter a plea or go to trial on any offense charge, (2) a statement that, if the person is unable to pay the full amount of payment that is acceptable to the court, the person should contract the court regarding the alternatives to full payment that are available to resolve the case
Consider: Records Retention Texas State Library and Archives Commission https://www.tsl.texas.gov/slrm/recordspubs/lc.html#part1 Local Schedule LC - Retention Schedule for Records of Justice and Municipal Courts Criminal docket (including traffic offenses and violations of municipal ordinances). 5 years Un-served arrest warrants for criminal offenses within jurisdiction of the court. 4 years after issuance Civil and criminal docket (recording cases of both types in one volume). Permanent CONSULT WITH COUNTY ATTORNEY OR COUNTY RECORDS OFFICER