Bail Bonds for All, Reprise Citations - Part I

VVVVVolume 16olume 16olume 16olume 16olume 16 MARCH 2007MARCH 2007MARCH 2007MARCH 2007MARCH 2007 No. 2 No. 2 No. 2 No. 2 No. 2

©2007 Texas Municipal Courts Education Center, Austin. Funded by a grant from the Court of Criminal Appeals.

Citations continued on page 10

I N S I D E T H I S I S S U E

Features

DWI Cases: Best Practices ...................... 4Public Safety Training ........................... 19

Columns

Academic Schedule ................................ 26Around the State .................................... 2Clerk’s Corner ........................................ 29Court Interpreters ................................. 31Court Security ........................................ 32Ethics Update ....................................... 22From the Center ................................... 25From the General Counsel .................... 3Municipal Traffic Safety Initiative ........ 34Registration Form ................................ 27Resources for Your Court .................... 18

Bonds continued on page 6

Bail Bonds for All, Repriseby David L. Finney, Attorney-at-Law, Denton

Citations - Part I(Tickets are for Concerts & Sporting Events)

by Ryan Kellus Turner, TMCEC General Counsel & Director of Education

Since this article was first printed inThe Recorder in March, 2004, a numberof changes in bail bond law haveoccurred. You can still prosecute bailbond forfeitures regardless ofwhether you are in a rural or big cityenvironment, but it may be moredifficult and less lucrative. Here is anupdated primer on getting started.

This article’s goal is to give countiesand cities ideas on managingbondsmen and attorneys, andprosecuting bail bond forfeitures.Generally, when we talk about theprosecution of bail bond forfeiture

cases, we speak in terms of bail bondboard counties and non-bail bondboard counties. Often, the difference ischaracterized in terms of “large vs.small” or “urban vs. rural.” It is truethat the regulation of bail bondsmen incounties with a bail bond board isquite different from those countieswithout bail bond boards, but theprosecution of bail bond forfeiture casesis virtually identical.

While the prosecution of bail bondforfeitures is not particularly difficult, itcan be both time- and paper-intensive.Large counties often have sufficient

resources and personnel to engage in acomprehensive bail bond operation,but the majority of Texas counties andcities are limited in both the time andstaff available to prosecute forfeiturecases.

Bond forfeitures are criminal in nature,but they follow the Rules of CivilProcedure.1 In essence, the State is suingto collect the debt created by thecontract (bond) for the appearance orreturn of the principal (defendant)which the bondsman has guaranteed(surety). The ever-present conflict is thefinal value of the return, or the failure

This is the first of a two part series.

In the context of the criminal justicesystem, a citation is defined as “[a]norder, issued by the police, to appearbefore a magistrate or a judge at alater date. A citation is commonly usedfor minor violations (e.g., trafficviolations); thus avoiding having totake the suspect into immediatephysical custody.”1

During Fiscal Year 2006, roughly 7.9million cases were filed in Texasmunicipal courts. During the sameperiod of time, more than three

million criminal cases were filed inTexas justice courts. The vast majorityof these cases were instigated by thefiling of a citation. In most cases,defendants did not contest their guilt,and the citation substituted for aformal charging instrument.

Citations are such a common staple inthe Texas criminal justice system thattheir purpose and utility are seldomcontemplated, let alone fullyappreciated. That is unfortunate.Citations are devices of efficiency that

The Recorder March 2007

Texas Municipal CourtsEducation Center

1609 Shoal Creek Boulevard, Suite 302Austin, Texas 78701

512/320-8274 or 800/252-3718Fax: 512/435-6118

Website: www.tmcec.com

Fair and Impartial Justice for All

FY07 TMCA/TMCEC OfficersPresident: Robin Ramsay, DentonPresident-Elect: Brian Holman, Lewisville1st V.P.: Robert Doty, Lubbock2nd V.P.: Ninfa Mares, Fort WorthSecretary: Leisa Hardin, CrowleyTreasurer: Robert C. Richter, MissouriCityPast-President: Steven Williamson, FortWorth

DirectorsGary Ellsworth, Spearman • StewartMilner, Arlington • C. Victor Lander, Dallas• Elaine Coffman, Athens • Regina Arditti,El Paso • Julian E. Weisler, II, Brenham •Walter Dick Kettler, Beverly Hills • DonnaStarkey, Alvin • Lester Rorick, Pasadena •Steven Kidder, Victoria

Staff• Hope Lochridge, Executive Director• Ryan Kellus Turner, General Counsel &

Director of Education• Margaret Robbins, Program Director• Meichihko Proctor, Program Attorney &

Deputy Counsel• Lois Wright, Program Attorney• Allison Attal, Program Coordinator• Patricia Russo, Program Assistant II• Margaret Danforth, Admin. Director• Herman Flores, Multimedia Specialist• Carrie Harper, Registration Coordinator• Noël Wells, Administrative Assistant• Shane Scribner, Research Assistant

Published by the Texas Municipal CourtsEducation Center through a grant from theTexas Court of Criminal Appeals. Subscrip-tions are free to all municipal judges, clerks,prosecutors, and support personnel em-ployed by the municipal court. Others maypurchase an annual subscription for $50.

Articles and items of interest not otherwisecopyrighted may be reprinted with attributionas follows: “Reprinted from the The Re-corder: Journal of Texas Municipal Courtswith permission from the Texas MunicipalCourts Education Center.”

The views expressed are solely those of theauthors and are not necessarily those of theTMCA Board of Directors or the staff ofTMCEC.

AROUND THE STATE

TMCEC Recreated as 501(c)(3)Over the last two years, the TMCEC Board of Directors has worked to file thenecessary paperwork with the IRS and create a new set of bylaws to establish a501(c)(3) non-profit organization status for the Education Center. In the past,TMCEC has simply been a project of the Texas Municipal Courts Association(TMCA), which is a 501(c)(4) entity. The new 501(c)(3) tax status went into effectJanuary 1, 2007. Special appreciation is given to TMCEC/TMCA TreasurerRobert C. Richter of Missouri City for his work on this project.

The purpose of this new organization is stated in the new bylaws: The Corporation isorganized exclusively for charitable, literary and educational purposes of providing: (1) judicialeducation, technical assistance, and the necessary resource material to assist municipal judges, courtsupport personnel, and city attorneys in obtaining and maintaining professional competence in thefair and impartial administration of criminal justice; and (2) information to the public about theTexas judicial system and laws relating to public safety and quality of life in Texas communities.The complete bylaws may be found on the TMCEC website: www.tmcec.com/files/BylawsMaster.doc. The bylaws are written such that the officers and directorsare the same as those of TMCA.

As a non-profit organization, TMCEC now accepts contributions and memorialsthat are tax deductible. The first contribution was recently given in honor of JudgeEarl B. Webb (see below). It was given in his memory by the Board of Directorsof the Texas Municipal Courts Association. Readers are encouraged to send inboth memorial contributions and “In Honor” contributions.

In Memory of Earl B. WebbJudge Earl B. “Bud” Webb passed away on October 17, 2006 at his home inLeague City. He was presiding judge in League City from 1968 to 1989. Duringhis tenure, he helped to establish the Texas Municipal Courts Association andfrequently taught in the clerks training program. Like so many of the judiciary thatserve in municipal courts, Judge Webb had a very active career. He served in theNavy submarine service in the Pacific Theater from 1943 though mid-1946. Heworked as a safety engineer with Central Power and Light in South Texas and laterwith Brown and Root-Northrop in Houston. While working for Brown andRoot, he returned to college to receive a second undergraduate degree in businessadministration and, later, a law degree. Also active in the Boy Scouts and the LionsInternational, his obituary noted that “The words We Serve are two words that hetook to heart.” Although an industrial accident resulted in Judge Webb being adouble amputee, to “go on above and beyond yourself to help others” becamehis creed. His complete obituary can be read at http://leaguecitylions.com/home_memorials_judge_web.php. He will be missed by many. TMCECexpresses its condolences to his family and friends.

Memorial Contribution

Honorable Earl B. Webb

The Board of Directors of the Texas Municipal Courts Association

March 2007 The Recorder

FROM THE GENERAL COUNSEL Ryan Kellus Turner

These Days Your Courtis Not the Only Thingin SessionThe 80th Legislature convened onJanuary 9th at noon. How excited areour public policy-makers to be backat work in the Capitol City? Morethan 300 bills bridging the publicpolicy gamut were pre-filed. That’sright.

I can tell you now, it’s easy to tell thatthis is going to be a very importantsession for municipal courts. While wecan expect to see garden varietyamendments to existing procedurallaws and the creation of new offenses,the 80th Legislature potentiallypromises to resolve issues relating tothe use of red light cameraenforcement technology, as well asredefine the way our state generallyviews certain subject matter wecurrently see in municipal courts (e.g.,one bill would authorize a study toinvestigate converting certain Class Cmisdemeanors into civil infractions).

A lot of readers want to know whatis going on during Session. WhileTMCEC will be tracking legislation inefforts to prepare for integratinglegislative changes into our resourcematerials, we won’t be detailing thespecifics of any legislation in TheRecorder until our special legislativeissue this summer. The sameinformation will be presented duringthe three Legislative Updates inAugust (August 7–Lubbock, August14–Houston, August 17–Austin).

By the time our special legislative issuecomes out, the proverbial smoke willhave cleared, and everyone will have abetter idea of the meaning andimplications of new legislation.

Rather than finding out whathappened after the fact when attendingthe TMCEC Legislative Updates,many people have inquired aboutoptions available for “staying in theloop” during Session. Through thepower of the Internet, keeping up onevents and being part of thedemocratic process is just key strokesaway. While there are many onlinelegislative services that require paymentof fees for services, I am here tomention just a few that are available atno charge.

Texas Legislature Online

Can’t make it to Austin to attendcommittee meetings? Want to searchbills by key words? Would you like toreceive an email from the Capitolevery time a bill has progressed orbeen amended during the legislativeprocess?

The Texas Legislature Online(www.capitol.state.tx.us) is truly animpressive website. Maintained by theTexas Legislative Council, it providesfull text access to state governmentresearch materials produced by theTexas Legislature, including: statutes,the Constitution, and theAdministrative Code; bills, completewith current status, legislative history,notes, and analyses; committeecalendars, schedules, and meetingminutes; house and senate journals;legislative statistics; historical lists ofmembership and leadership; links toother state agencies; and much more.It includes information about currentmembers of the Texas Senate, TexasHouse of Representatives, the Texasdelegation to the U.S. House ofRepresentatives, and the State Boardof Education.

Texas Municipal League

The staff attorneys at the TexasMunicipal League (TML) really do anoutstanding job of tracking andsummarizing bills of interest to Texasmunicipalities, including municipalcourts. Most of your cities receive thehardcopies of their periodic updatesthroughout the session. A link to thelegislative section of their website canbe found at www.tml.org.

In December, TML staff begangathering email addresses from cityofficials (elected or appointed) whoare willing to provide testimonyduring the 2007 Session. If you wouldlike to participate in this E-List project,simply send an email to Rachael Pittsat [email protected] with your name andemail address. In the body of yourmessage, tell her what city you serveand that you are interested ininformation relating to municipalcourts.

TML’s E-List project can also be usedto receive emails addressing varioustypes of municipal related legislation.For a complete list of subjects, checkout their website.

Texas Municipal CourtsAssociation

Thanks to some new initiatives takenby the Texas Municipal CourtsAssociation, including a freshlyrevamped legislative program, you canstay informed throughout Session.(TMCA is the parent organization ofTMCEC.)

At its annual meeting in Galveston lastOctober, TMCA adopted an agendaof legislative initiatives. Judge RobinRamsay of Denton, President ofTMCA, appointed Judge John


Vasquez of Austin to chair theLegislative Committee. Othermembers appointed to the committeeinclude Judge Victor Lander of Dallas,Judge Robert Doty of Lubbock,Judge Kevin Madison of Lakeway,Judge Cappy Eads of Salado, JudgePhyllis Mathison of Bastrop, JudgeAllen Gilbert of San Angelo, JudgeGlenn Phillips of Kilgore, Judge SusanHorton of Brady, Judge Joe Pirtle ofSeabrook, Judge Robert Kubena ofHallettsville, and Judge Julian Wiesler,II of Brenham. As of this writing, thecommittee has met three times andwill meet throughout the Session.

TMCA has implemented two newmeasures to apprise interested folks ofmatters exclusively related to municipalcourts:

Briefing by Email - If you wouldlike to receive a timely briefing onlegislative issues, please send JudgeVasquez an email. His email address:[email protected]. In the subjectline of your message, please state“Briefing by Email.” In the body ofyour message, state your job title andthe name of the city or cities youserve.

TMCA Website and LegislativeBlog - So, you have enough unopenedemail as is? Your city has implementeda firewall that does not allow you toreceive email from unknown sources?In the words of Radney Foster:“There is another way to go.”

Hopefully by now, most of ourreaders have bookmarked theTMCEC website (www.tmcec.com).But have you bookmarked the TMCAwebsite? Their address iswww.txmca.org. (Alternatively, you canclick on the TMCA link located on thelower right side of the TMCEChomepage).

By the time you read this, the TMCAwebsite will contain legislativeinformation and a link to a blogexclusively dedicated to legislativehappenings of interest to municipalcourts. A blog (a.k.a., weblog or weblog) is a website that consists of aseries of entries arranged in reversechronological order, often updatedfrequently with new informationabout particular topics of interest. Theinformation can be written by the siteowner, gleaned from other websites

or sources, or contributed by users.Judge Vasquez and the LegislativeCommittee will be using the blog as away to help interested readers keep upto speed. For those of you who maybe a little gun shy using a blog, it’sreally no different than reading anewspaper online at your leisure.

Final Thoughts

In a representative democracy, timespent keeping tabs on the Legislature ishardly time spent in vain. While theseare just a few of the resources outthere, hopefully they will collectivelyappease those whose hunger forknowledge cannot wait until August.Time spent watching legislative issuesdevelop will make your job easierwhen a whole new crop of legislationgoes into effect on September 1, 2007.With any luck, it will also make yourLegislative Update experience inAugust a tad less jolting.

Mark your calendars and register nowfor the TMCEC Legislative Updates.Seats in Lubbock, Houston, andAustin are going fast. (See page 28 fora registration form.)

Editor’s Note: Only the most applicableparts of Judge Hodges’ article have beenreprinted in this issue of The Recorder. Toaccess the entire article, go to the TMCECwebsite: www.tmcec.com/Traffic/DUI.html.

Without a constant review of how wedo business, delay will insidiouslywork its way into every phase of thedisposition process. Our TexasSupreme Court has stated:

Delay haunts the administration ofjustice. It postpones the rectification of

The Efficient Disposition of DWI Cases:Best Practices

by David L. Hodges, Texas Judicial Resource Liaison, Texas Center for the Judiciary, Austin

wrong and the vindication of the unjustlyaccused. It crowds the dockets of thecourts … pressuring judges to takeshortcuts, interfering with the prompt anddeliberate disposition of those cases inwhich all parties are diligent andprepared for trial, and overhanging theentire process with the pall ofdisorganization and insolubility… .[P]ossibilities for error multiply rapidlyas time elapses between the original factand its judicial determination. If the factsare not fully and accurately determined,

then the wisest judge cannot distinguishbetween merit and demerit. SouthernPac. Transp. Co. v. Stoot, 530 S.W.2d 930, 931 (Tex. 1975).

As gatekeepers to the doors of thecriminal justice system, it is our job asjudges to constantly review and revisethe way we dispose of our criminalcaseload. We know by intuition, andresearch confirms, that the moreproximate in time disposition is to thedate of arrest, the more effective thesentence will be. However, the Office


processing time by several hours, butalso benefits the prosecutor who canbe provided online, password-protected access to the offense reportwithout delay. The program wasinitially “field tested” in 10 Texascounties and is now available statewideat no cost. The only requirement is forthe officer to have online access toinput the information. For moreinformation on how to make thisprogram available in your area, go towww.leadrstexas.com.

Magistrate’s Warning, SettingBond, Interpreters, and AppointingAttorneys

After arrest, the law requires adefendant to appear before amagistrate to receive his/her statutorywarning; have bond conditions set(including breath interlock); receive anindigency application; and have anattorney appointed, if necessary.Although the delays are as varied asthe jurisdiction involved, commondelays can be reduced by thefollowing practices:

• Having a magistrate available 24/7. If the jurisdiction’s caseloaddoes not warrant having a full-time magistrate at the jail, videoconferencing can be establishedbetween the jail and remote sitesin the county where magistratesare available. The cost of thevideo conferencing equipment canbe recovered by reduced jailpopulation and reduced jailstaffing costs.

• Having an interpreter available24/7. Again, if the caseload doesnot warrant a full-time interpreter,video conferencing can be used.

• Having a court-appointed attorneyavailable full-time or, on shortnotice, to consult with thedefendant. If the defendantremains in jail, the consultationcould also occur through videoconferencing. This significantly

reduces time spent by the attorneywaiting to see the defendant andcan also reduce jail staff time bymaking defendants available forin-person consultation withattorneys. If the defendant is freeon bond, many jurisdictionsappoint an “attorney for the day”who is available in court forindigent defendants, instead ofappointing a separate attorney foreach individual defendant. Oneconsistently identified source ofdelay results when appointedcounsel is given inaccurate contactinformation for the defendant andis unable to contact and consulthis/her client. It is thereforeimportant that the person whogenerates the contact informationprovided to appointed counsel(magistrate, jail staff, PR bondcoordinator, interpreter) make aneffort to ensure accuracy of thecontact information.

Note: The rest of the article applies to non-municipal issues and can be accessed atwww.tmcec.com/Traffic/DUI.html. Itdiscusses prosecution and court administrationand contains an extensive list of references.

_______________

Judge David L. Hodges served on theCounty Court at Law bench in Wacofrom 1983 to 2003 and was appointedTexas Judicial Resource Liaison in2005. He can be reached at 254/744.1115 or [email protected].

of Court Administration Annual Reportshows that more than two-thirds ofDWI cases are disposed 90 days ormore after arrest. The averagedisposition rate of DWI cases is muchslower than other misdemeanor casesin most counties because of theinherent delays identified in this article.It is our goal to identify where thesedelays occur in the disposition processand allow individual judges andprosecutors to decide which of thesepractices might be useful in theircounties to eliminate or reduce thosedelays.

Offense Report

In many jurisdictions there is significantdelay from the date of arrest until thedate the offense report and criminalrecords check are received by theprosecution. In many jurisdictions, thelocal police agency may take one totwo weeks to transfer a written officereport for prosecution review; smallerarresting agencies within the countymay delay the preparation and transferof an offense report by a month orlonger. This obviously delays the abilityof the prosecutor to review the factssurrounding the arrest, evaluate andfile or decline the case, or requestadditional information from thearresting agency. It also requiresadditional staff time by theprosecutor’s office to track down andrequest missing offense reports.

This problem has an easy andaccessible solution. The TexasMunicipal Police Association, with agrant from TxDOT, has created theLEADRS program, which allows thearresting officer to access an onlineweb based program for creation of aDWI offense report. Not only doesthe program simplify and standardizethe process, it also uses theinformation that the officer inputs topopulate all of the additional formsrequired when a DWI defendant isarrested. This program benefits notonly the arresting officer by reducing


Bonds continued from page 1

to return the principal, to the State’scustody.

Since the last federal census, a numberof counties have struggled through thecreation of bail bond boards and thechanges they bring to the bail bondcommunity. Counties with populationsof 110,000 or more have mandatorybail bond boards.2 Counties withsmaller populations may create adiscretionary bail bond board with thesame rights and powers of amandatory board.3 A discretionary bailbond board is created through themajority vote of the persons whowould serve on the bail bond board.4The advantages to having a board aregreater regulation of the bondsmen(including attorneys), diversification ofthe duties to regulate bondsmen, and afew legal requirements in theprosecution of bail bond forfeiturecases.5 The disadvantages include moremeetings for elected officials, morepeople involved in the regulation ofbondsmen, and greater overallbureaucracy. Each county without abail bond board should considerwhether the county would benefitfrom creating a board or whether itwould really matter in the operation orprosecution of county business. Oncethis determination has been made, thecounty should proceed accordingly.

Philosophy and Education

If your city has never prosecuted bailbond forfeitures and you want tostart, one of your first tasks will be todevelop a philosophy of prosecution.The prosecutor must determine whatgoals he or she has for bail bondforfeiture prosecutions, when andunder what circumstances cases shouldbe settled or tried, and what ranges ofsettlement should be available.

Once you have determined andarticulated your philosophy and goals,you must educate the players in yourbail bond game. There is no rightplace to begin the education process,

but logically, it begins with the self-education of the prosecutor’s officeand the development of a prosecutionstrategy; it proceeds through the lawenforcement offices, the offices of themunicipal clerks, and the judiciary. Theprimary purpose of the bail bondforfeiture program, of course, is toreturn the defendant (principal) tocustody, allowing criminal prosecutionto continue. The program’s by-productis income for the general fund.6 Thecity council will likely appreciate the by-product far more than the purpose.

Each legislative session, the bondsmenand their lobbyists portray the bailbond prosecutors as a group ofgreedy iconoclasts and complain to thelegislature that there is little or noconsistency in the prosecution of bailbond cases. One of our goals in theprosecution of bail bond forfeituresshould be the consistent application ofthe law. Consistency in applying the law,however, still leaves considerablediscretion for local philosophies on theprosecution or settlement of cases.

Prosecution

The prosecution of a bail bond casebegins with the setting and properexecution of the bail bond. The lawenforcement office accepts bail bondsin both board and non-board counties.Be sure that the person in the sheriff ’soffice who accept bail bonds inspectseach bond carefully to be certain thatthe bond meets all the legalrequirements of a bail bond,7 that it isproperly signed, that it is readable, andthat it has sufficient information toidentify and serve citation on both theprincipal (defendant) and thebondsman (surety). Now, even incounties without bail bond boards, lawenforcement must check to see thatthe person writing the bond is qualifiedto write bonds. In a non-board county,a person “may not be a surety …unless … the person, within two yearsbefore the bond is given, completed inperson at least eight hours ofcontinuing legal education… .”8 If the

surety is an insurance company, the lawenforcement office also must be surethat a power of attorney from theinsurance company is attached to eachbond in addition to the certificate ofattendance.9 If the bond is an attorneybond, law enforcement must alsoobtain a certificate of completion ofcontinuing legal education (bondsman’sversion) and must be sure the attorneyis a Texas resident.10 Remember thatthe arraigning magistrate may set thebond’s amount but may not set thetype of bond.11 It is also good toremember that the bond may be usedonly to secure the principal’sappearance in court and not for fines,fees, and costs.12

Once the principal has failed to appearin court, the prosecutor should presentthe judge of the court where thefailure to appear occurred a judgmentnisi. While the judge is not required tosign the judgment nisi on the same dayas the principal’s failure to appear, sheshould sign it as soon thereafter as ispractical.13 The judgment nisi is thebasis of the State’s case for forfeitureand becomes the State’s petition.14 It, acopy of the bond, and the citationshould be served upon the principaland surety in the same manner as anyother civil suit.15 Please note, however,that a bond forfeiture requires “magicwords” in the citation.16 The magicwords are, “… to show cause why thejudgment of forfeiture should not bemade final.” Failure to include themagic words may be fatal to thecitation. You may need to spend sometime with the county and district clerksto review the service of citation inbond forfeiture cases as a part of youreducation process.

Service of Citation

One of the biggest problems in bondforfeiture cases is obtaining jurisdictionover the proper parties. Property bailbond companies have individualowners who should be served citationin their individual capacities. Forexample, if Sam Spade owns Ace Bail


Company, the proper party in a bondforfeiture is Sam Spade d/b/a AceBail Company. Ace Bail Company ismerely an assumed or trade name(“d/b/a”) and is not an entity with thefull capacity to sue or be sued.17 SamSpade is the real party in interest, andyou should serve him with citation fora bail bond forfeiture. A judgmentagainst Ace Bail Bonds may not beenforceable against Sam Spade andmay be uncollectible against Ace.

Unlike an assumed name company, acorporation is an entity having thecapacity to sue or be sued, but a bailbondsman may not be acorporation.18 However, there is anexception to that general corporaterule: Insurance companies that haveobtained authority from the TexasDepartment of Insurance may writesurety bonds;19 an insurance companywithout authority from theDepartment of Insurance may notwrite bail bonds.20 Insurancecompanies have local bail bond agentswho run the company’s day-to-daybail bond business, but the agents haveno liability to the State for the bonds.

You must serve citation on theinsurance company in a bondforfeiture, not on the local agent. Forexample, although you may deal withlocal agent Bill Bond, he is merely theagent for ABC Surety Company. Thelocal agent does business under thetrade name of Easy Bail. To obtainproper jurisdiction for a bail bondforfeiture for Easy Bail, you mustserve citation on ABC SuretyCompany. It is likely that ABC willhave a registered agent for service ofprocess (citation). If you have a bailbond board, that registered agentshould be on file with the board. Ifyou do not have a board, you maycontact the Secretary of State’s Officeor the Texas Department of Insuranceand obtain the name and address ofABC’s registered agent. Both propertybondsmen and insurance companiesmay now waive citation, but this

waiver has not become a commonpractice.21

In Denton County, for example, ABCwould be served with citation asfollows: ABC Surety Company, BillBond, Agent, d/b/a Easy Bail, by andthrough its registered agent, C.T.Corporation, C/O Jean Phelps, 350North St. Paul Street, Dallas, TX75201. The use of local agents, tradenames, and registered agents oftenallows insurance companies to avoidliability on bail bonds. You may havebond forfeiture citations served inperson, by certified mail, or even bypublication.22 The proper party for theservice of citation is the same in allbail bond forfeiture cases regardlessof whether you have a bail bondboard or not.

Trial and Defenses

After service of the citation, theprincipal and surety have until the firstMonday after the expiration of 20days from the date of service to filean answer.23 If either or both fail toanswer in a timely manner, the Statemay take a default judgment againsteither or both, depending upon thefacts of service and the filing of ananswer.

Before you may take a default,however, you must address a federalissue. In December 2003, theServicemembers Civil Relief Act wentinto effect. It requires that a plaintiff(including the State) provide the courtwith an affidavit of non-militaryservice prior to proceeding in a bondforfeiture case or any civil matter thatmight affect an activeservicemember.24 Absent a Stateaffidavit that the party is not on activemilitary duty, the court may appoint anad litem for the servicemember, forwhom the State must pay the fees, orthe court may refuse to proceed witha default and abate the action until theservicemember’s return from activeduty.25 This is a huge change from theold Soldiers and Sailors Relief Act,

which was an affirmative defense formembers of the armed services. TheServicemembers Civil Relief Act is abar to prosecution unless the plaintiffcomplies with its elements.26

Fortunately, the Department ofDefense provides a website forgovernment agencies to check militarystatus (www.dmdc.osd.mil). A defaultjudgment against only one party isinterlocutory unless the active partiesand defaulted parties are severed. Thesevered default becomes final after 30days, presuming that a motion fornew trial or a notice of appeal is notfiled. If an answer is filed, theanswering party is entitled to at least a45-day notice of the trial date andmay have a jury trial if one is requestedproperly.27

At trial, the State has the initial burdenof proof. The State may, however, beable to submit a wholly documentarycase if neither the principal nor thesurety deny the execution of the bondin a sworn pleading. The State’s casemust include the bond and judgmentnisi.28 It has been agreed generally thata court may take judicial notice of thejudgment nisi and the bond,29 but thebetter practice is to admit certifiedcopies of the bond, judgment nisi, andcertificate of call, if available, underTexas Rule of Evidence 902.30 Afterthe court admits the State’s documents,the State will usually rest; once theprima facie case has been established, theburden shifts to the principal andsurety to show why the forfeitureshould not be made final.31 Before youspring this procedure on an unwaryjudge at trial, you may wish to spendsome time with him or her reviewingChapters 17 and 22 of the Code ofCriminal Procedure, as the shifting ofthe burden and a wholly documentarycase are somewhat rare for the State.The duty to educate on bail bondissues and their idiosyncrasies extendseven to the judiciary.

The majority of the trial on the meritsof a bond forfeiture consists of the


principal, who rarely appears, or thesurety, attempting to explain to thecourt why it is unfair to take any of thebond, much less all of it, and to assessthe costs of court. Every imaginableexcuse will be proffered. Fortunately,only statutory excuses (defenses) willsuffice.32 There are only four primary,statutory defenses and a relatively newlimitation of liability: 1) The bond is,for any cause, not a valid undertaking;2) the death of the principal before thetime of appearance (forfeiture); 3) theState’s failure to present an indictmentor information at the first term of thecourt after the principal is admitted tobail (this is rare); 4) the illness of theprincipal or some uncontrollablecircumstance prevented the principal’sappearance in court through no faultof his own; and 5) the concept called“exoneration.”33 Exoneration wascreated by the 78th Legislature to givethe bondsmen their “time certain.”34

“Exoneration” is a misnomer and isnot really a defense or release. If adefendant is incarcerated in anyjurisdiction in the United States within180 days for a misdemeanor or 270days for a felony, the surety is limitedin his liability to costs of court, anyreasonable and necessary costs incurredto secure the principal’s return, andinterest accrued on the bond from thedate of the judgment nisi to the dateof incarceration.35 This is NOT arelease of the bondsman as is atraditional defense, but is a certain timethat the bondsman’s liability is limitedto a statutory minimum. Be sure tonote that in situations of exoneration,interest is mandatory.36 Surprisingly, thelack of actual notice of the hearing,trial, or any other appearance is notnecessarily a defense.37 Unless theprincipal or surety can provide one ofthese defenses, including exoneration,or can convince a judge that his storyfalls within the statutory guidelines, theState must prevail for the bond’s fullamount. Deportation is also not anacceptable defense to a bondforfeiture.38

If the bondsman or the principalelects to challenge the bond as aninvalid undertaking, he will likely do soat the final hearing. Unfortunately forhim, such a challenge is not timely.39

An excuse for the principal’s failure toappear may exonerate both theprincipal and the surety, but the excusemust not only be an uncontrollablecircumstance, it must also be throughno fault of the principal.40 Interestingly,however, incarceration elsewhere atthe time of appearance can be adefense.41

Surrender of Principals

Two other points argued as a defenseare the Affidavits of Surety toSurrender Principal (ASSP)42 andAffidavits of Incarceration.43 The merefiling of an ASSP is not a defense.44

The bondsman has an affirmative dutyto show that the ASSP was presentedto a judge with jurisdiction and thatthe judge refused to sign it without alegal reason.45 The ASSP is acontingent release of partial liability46

which only becomes a defense when ajudge refuses, without legal reason, tosign the timely filed ASSP.47 Manyjudges do not want to sign ASSPsbecause they mistakenly believe thatthey are wholly releasing thebondsman. By signing the ASSP, ajudge merely directs the clerk to issue awarrant for the principal, which is theonly legal means by which thebondsman can retrieve a principal. TheASSP limits the bondsman’s liability tocosts of court and rearrest fees oncethe principal has been returned tocustody. If the principal is not returnedto custody, the bondsman remainsfully liable on the bond and the courtmay not hold the bondsman to lessaccountability absent a settlement.48

Encourage your judges to sign properASSPs and explain the harm of notsigning them to your forfeiture.49

The Affidavit of Incarceration allowsthe release of the bondsman withoutthe intervention of a court or the

prosecuting attorney.50 If thebondsman actually surrenders theprincipal before forfeiture or submitsan affidavit stating that the principal isincarcerated in federal custody, in thecustody of any state, or in the custodyof any county of this state, then thebondman may be relieved of hisundertaking.51 This provision originallycontemplated the principal’s actualdelivery to the sheriff, but thesubsequent verification languagelessened the surety’s burden. Thebondsman is not automaticallyabsolved of liability but is releasedafter verification of the incarceration.52

Unlike the ASSP, the Affidavit ofIncarceration is a complete release.Many judges dislike the Affidavits ofIncarceration; some will even try tooverrule the release of the bondsman.There is no legal precedent for suchjudicial interference with an Affidavitof Incarceration release.

Remittitur

In 2003, the Texas Legislature finallyremoved the language from the Codeof Criminal Procedure governingremittitur that the courts heldunconstitutional over a decade ago.53

The new provisions for remittiturappear to provide for a form ofmandatory remittitur and a limitationof liability,54 which may contravene theCourt of Criminal Appeals’ holdingthat mandatory remittitur isunconstitutional.55 Unfortunately, thisprovision has not been tested in thecourts as of this writing. It is likely,however, that remittitur still lies withinthe court’s sound discretion, but onlytime and the right facts will answer thisquestion definitively.56 While it appearsthat remittitur is still possible for twoyears after the forfeiture’s date, itsavailability and amount remain at thetrial court’s sole discretion.57

If you review Chapters 17 and 22 ofthe Code of Criminal Procedure, theattendant common law, and TexasOccupations Code §1704 for bail


bond board counties, you should findsufficient direction for the prosecutionbail bonds regardless of whether youpractice in a board county or a non-board county. Many resources areavailable to help in your endeavorswith the prosecution of bail bondcases. You need only ask._______________1 Tex. Crim. Proc. Code Ann. art. 22.10(Vernon Supp. 2006); Dees v. State, 865S.W.2d 461 (Tex. Crim. App. 1993); Williamsv. State, 707 S.W.2d 40 (Tex. Crim. App.1986).2 Tex. Occ. Code Ann. § 1704.051 (VernonSupp. 2006) (The 79th Legislature consideredlowering this threshold to 50,000, but theconcept never left committee).3 Tex. Occ. Code Ann. § 1704.052 (VernonSupp. 2006).4 Id. (roughly including the sheriff or adesignee, a district judge with criminaljurisdiction, the county judge or a memberof the commissioners court or a designee,the judge of a county court or county courtat law, the district attorney or an assistant, alicensed bondsman elected annually by thebondsmen, a justice of the peace, thedistrict clerk or a designee, the county clerkor a designee, a municipal judge, the countytreasurer, and a criminal defense attorneypracticing in the county and elected by otherattorneys).5 E.g., Tex. Occ. Code Ann. § 1704.207(Vernon Supp. 2006) (punishes abondsman for improperly withdrawingfrom a bond by making him or her refundpart or the entire fee for the bond back tothe principal).6 E.g., Tex. Code Crim. Proc. Ann. Art.103.004 (Vernon 2003) (Although fundsfrom bail bond forfeitures go to the generalfund, the commissioners court may directthe funds from the general fund whereverthey desire).7 Tex. Crim. Proc. Code Ann. art. 17.08(Vernon 2001) (All elements set out in thestatute must be present).8 Tex. Crim. Proc. Code Ann. art. 17.10(b)(Vernon Supp. 2006) (The sheriff shouldask for a copy of the bondsman’s certificateof attendance before accepting a bond, andkeep a copy of the certificate on file).9 Tex. Crim. Proc. Code Ann. arts. 17.06-17.07 (Vernon 2001); Schnitzius v. Koons, 813

S.W.2d 213 (Tex. App.–Dallas 1991); andU.S. v. McCallum, 788 F.2d 1042 (5th Cir.1985) (An insurance bond without a powerof attorney may be unenforceable againstthe insurance company.10 Tex. Crim. Proc. Code Ann. arts. 17.11,17.10(b) (Vernon Supp. 2006) (Regularattorney CLE is insufficient to meet thisrequirement).11 Op. Tex. Att’y Gen. No. JM-363 (1985);Ex parte Deaton, 582 S.W.2d 151 (Tex. Crim.App. 1975); Ex parte Rodriguez, 583 S.W.2d792 (Tex. Crim. App. 1979) (While themagistrate may recommend a form[personal recognizance, personal, cash, orsurety], it is not independently enforceable).12 Id.; Trammel v. State, 529 S.W.2d 528 (Tex.Crim. App. 1975); McConathy v. State, 528S.W.2d 594 (Tex. Crim. App. 1975);Grantham v. State, 408 S.W.2d 235 (Tex.Crim. App. 1966). (It is possible to use acash bond for fines, fees, and costs, but youmust have the express consent of thedefendant to do so).13 Mackintosh v. State, 845 S.W.2d 261 (Tex.App.–Houston [1st Dist.] 1992).14 Cheatham v. State, 13 Tex. Ct. App. 32(1884); see also Swaim v. State, 498 S.W.2d 988(Tex. Crim. App. 1973).15 Tex. Crim. Proc. Code Ann. art. 22.04(Vernon 2001); Hubbard v. State, 814 S.W.2d402 (Tex. App.–Waco 1991) (With a surety,the citation to the principal need only besent regular U. S. Mail and service iscomplete upon posting); Tex. Crim. Proc.Code Ann. art. 22.05 (Vernon 2001)(despite this provision, it may be prudentto use certified mail).16 Id.17 Tex. Rul. Civ. Proc. 28 (2002); Tex. Bus. &Com. Code Ann. §36.10 (Vernon 2001);Chilkewitz v. Hyson, 22 S.W.3d 825 (1999).18 Tex. Crim. Proc. Code Ann. art.17.06(Vernon 2001); Tex. Ins. Code Ann. art.1.14 (Vernon 2001); Freedom, Inc. v. State, 569S.W.2d 48 (Tex. Civ. App.–Austin 1978).19 Id.20 Id.21 Tex. Crim. Proc. Code Ann. art. 22.03(Vernon Supp. 2006).22 Tex. Rul. Civ. Proc. 106-107 (2006); Tex.Crim. Proc. Code Ann. arts. 22.05-22.06(Vernon 2001).23 Tex. Rul. Civ. Proc. 15 & 239 (2006); Tex.Crim. Proc. Code Ann. art. 22.15 (Vernon2001).

24 Servicemembers Civil Relief Act, 108Pub. L. No. 189, 117 Stat. 2835 (2003).25 Id.26 Id.27 Tex. Rul. Civ. Proc. 245 & 216 (2006)(Request must be in writing and jury feemust be paid at least 30 days prior to thetrial date).28 Tocher v. State, 517 S.W.2d 299 (Tex. Crim.App. 1975); Hernden v. State, 865 S.W.2d 521(Tex. App.–San Antonio 1993).29 Hokr v. State, 545 S.W.2d 463 (Tex. Crim.App. 1977) But see Williams v. State, 82S.W.3d 788 (Tex. App.–Corpus Christi2002) (indicating that a court may not takejudicial notice of a bond).30 Tex. Rul. Evid. 902 (2006); Intl. Fid. Ins.Co. v. State, 65 S.W.3d 724 (Tex. App.–ElPaso 2001).31 Hill v. State, 920 S.W.2d 468 (Tex. App.–Waco 1996, rev’d on other grounds 995S.W.2d 96); Bob Smith Bail Bonds v. State, 963S.W.2d 555 (Tex. App.–Fort Worth 1998).32 Rodriguez v. State, 673 S.W.2d 635 (Tex.App.–San Antonio 1984); Telles v. State, 911S.W.2d 820 (Tex. App.–El Paso 1995).33 Tex. Crim. Code Proc. Ann. art. 22.13(Vernon Supp. 2006).34 Tex. Crim. Code Proc. Ann. art.22.13(a)(5) (Vernon Supp. 2006).35 Tex. Crim. Proc. Code Ann. art. 22.13(b)(Vernon Supp. 2006).36 Id.37 Yarbrough v. State, 703 S.W.2d 645 (Tex.Crim. App. 1985); Alvarez v. State, 861S.W.2d 878 (Tex. Crim. App. 1993).38 Allegheny Cas. Co. v. State, 163 S.W.3d 220(Tex. App.–El Paso 2005); Castaneda v. State,55 S.W.3d 729 (Tex. App.–Corpus Christi2001); Castaneda v. State, 138 S.W.3d 304(Tex. Crim. App. 2004).39 Scott v. State, 617 S.W.2d 691 (Tex. Crim.App. 1981); Balboa v. State, 612 S.W.2d 553(Tex. Crim. App. 1981); Watson v. State, 32S.W.3d 335 (Tex. App.–San Antonio 2000)(Challenge to the bond must be made atthe time of execution, not at final hearing).40 Hill v. State, 955 S.W.2d 96 (Tex. Crim.App. 1997); Reyes v. State, 31 S.W.3d 343(Tex. App.–Corpus Christi 2000).41 Gourley v. State, 344 S.W.2d 882 (Tex.Crim. App. 1961); Sanders v. State, 312S.W.2d 660 (Tex. Crim. App. 1958).42 Tex. Crim. Proc. Code Ann. art. 17.19(Vernon 2001).


43 Tex. Crim. Proc. Code Ann. art. 17.16(Vernon 2001).44 Apodaca v. State, 493 S.W.2d 859 (Tex.Crim. App. 1973); McConathy v. State, 545S.W.2d 166 (Tex. Crim. App. 1977).45 Maya v. State, 126 S.W.3d 581 (Tex. App.–Texarkana 2004); Cowboy Bail Bonds v. State,No. 05-03-01419-CV, 2004 Tex. App.LEXIS 7571 (Dallas, August 24, 2004).46 Id.47 Id.48 Allegheny Mut. Cas. Ins. v. State, 710S.W.2d 139 (Tex. App.–Houston [14thDist.] 1986); Apodaca, 493 S.W.2d 859;McConathy, 545 S.W.2d 166; Tex. Occ. CodeAnn. §1704.205 (Vernon 2001) (Thesettlement provision appears to apply onlythe board counties).49 Tex. Crim. Proc. Code Ann. §17.19(Vernon 2003).50 Tex. Crim. Proc. Code Ann. §17.16(Vernon 2003).51 Id.52 Id. (It is wise to arrange for a hold or awarrant for the principal before the surety isabsolved).53 Tex. Crim. Proc. Code Ann. art. 22.16(Vernon Supp. 2006).54 Id.55 Lyles v. State, 850 S.W.2d 497 (Tex. Crim.App. 1993).56 Id.

Citations continued from page 1

save the government money and savecountless people the experience ofbeing arrested, booked, incarcerated,and released on bail.

From a public policy perspective, theimportance of citations goes beyondthe embarrassment, trauma, orinconvenience of being arrested.Logistically and financially, it is hard toimagine how society could manage theenormous burden of enforcing its lawsrelating to public safety and quality oflife if every accused violator first had tobe arrested, booked, incarcerated, andreleased on bail.

While there is no comprehensive sourceof secondary literature on the subject ofcitations as utilized in the Texas criminaljustice system, there are countlessnumbers of articles on the subject offull custodial arrest. The irony of courseis that most Texans have not been, andnever will be, subject to full custodialarrest; most, however, sooner or later,will be issued a citation.

Although I began gathering materialsfor this article five years ago, the truthof the matter is that seeds were plantedwhen I first passed the Texas BarExamination and realized that afterthree years of intensive study in lawschool, not to mention $100,000 instudent loans, I was now a licensedattorney, but did not feel equipped tohandle something as common as aspeeding ticket.

In this, and in the next issue of TheRecorder, we will discuss 25 of the mostcommon questions relating to citationsasked over the years by judges, lawyers,and law enforcement.

For the uninitiated and veterans alike,citations, like most things in the law, areseldom as simple as they seem. Thisseries of articles is intended tosupplement and reinforce a relatedpresentation you are likely to see if youattend a TMCEC seminar this year. Thequestions touch on issues that range

from the basic to the more advanced.The answers range from the definite tothe unknown.

1. How does Texas criminal lawdefine “citation”?

The two statutes authorizing theissuance of what are commonlyreferred to as citations are the Code ofCriminal Procedure and theTransportation Code.

While Article 14.06(b) authorizes acitation to be issued for certain offenses,the term is not defined in the Code ofCriminal Procedure.

Chapter 543 of the TransportationCode similarly does not define theterm. In fact, the term citation is noteven used. In its place, theTransportation Code uses a descriptivephrase: “written notice to appear incourt.”2

The only definition in statutory law iscontained in Section 703.001 of theTexas Transportation Code, whichstates that the term’s meaning is assignedby Article II, Section (b) of theNonresident Violator Compact of1977: “any summons, ticket, or otherofficial document issued by a policeofficer for a traffic violation containingan order which requires the motorist torespond.”

2. What does the law require to beprinted on a citation?

Article 14.06 of the Texas Code ofCriminal Procedure states that a citationmust contain: (1) written notice of thetime and place the person must appearbefore a magistrate; (2) name andaddress of the person charged; and (3)the offense charged.

Section 543.003 of the TransportationCode states that the written notice toappear in court must contain: (1) thetime and place the person is to appear;(2) the offense charged; (3) the nameand address of the person charged;and, (4) if applicable, the license numberof the person’s vehicle.

_____________

Reprinted with permission from The TexasProsecutor, November-December 2006, apublication of the Texas District andCounty Attorneys Association.


Over the last 10 years, the Legislaturehas not hesitated to expand theamount of information that is requiredto be printed on a citation. Akin to thecraft of painting portraits on the sidesof a single grain of rice; state, county,and municipal governments oftenstruggle to place all of the requisiteinformation on one citation.

How does the citation used in yourmunicipality stack up? What followsare 10 statutes governing the contentof citations:

“The 10 Day Rule” – Section543.006 of the Transportation Codestates that the time specified in thenotice to appear must be at least 10days after the date of arrest unless theperson arrested demands an earlierhearing. The place specified in thenotice to appear must be before amagistrate having jurisdiction over theoffense in the municipality or county inwhich the offense is alleged to havebeen committed.

Notably, there is no similar parallel rulefor citations issued under the Code ofCriminal Procedure stating the periodof time in which a defendant mustappear.

Notice to Appear: CommercialVehicle or License and the “SocialSecurity Number Rule” – Section543.007 of the Transportation Codeprovides that a notice to appear issuedto the operator of a commercialmotor vehicle or holder of acommercial driver’s license (CDL) orcommercial driver learner’s permit forthe violation of a law regulating theoperation of vehicles on highways,must contain the information requiredby department rule, to comply withChapter 522 and the FederalCommercial Motor Vehicle Safety Actof 1986 (Title 49, U.S.C. Section 2701et seq. - this provision was renumberedas Title 49, U.S.C. Section 31302).

The proposition that a citation issuedto the holder of a CDL must contain

the social security number of thedriver is widely accepted but notexpressly stated in federal or state law.Section 31308(4)(B) of the FederalCommercial Motor Vehicle Act of1986 requires that the license containthe social security number or othernumber the Secretary ofTransportation determines is necessaryto identify the driver. Section 543.201of the Transportation Code requirescourts to keep records reflecting that aperson is charged with a law violationrelating to the operation of a motorvehicle on a highway. Section 543.202requires “the record must be made ona form or by a data processingmethod acceptable to the departmentand must include, among other things,the person’s social security number, ifthe person was operating acommercial motor vehicle or was theholder of a CDL or commercialdriver’s learning permit.” Since suchlicense holders are not required by lawto make an appearance in court, andbecause such information is stillmanually reported by the court to theDepartment of Public Safety (DPS)via the citation, the only way that thisinformation can be recorded andreported by the courts is if it iscollected by a peace officer at the timethe citation is issued.

Specification of the SpeedingCharge - Pursuant to Section 543.010of the Transportation Code, thecomplaint and the summons or noticeto appear on a charge of speedingmust specify: (1) the maximum orminimum speed limit applicable in thedistrict or at the location; and (2) thespeed at which the defendant is allegedto have driven.

Notice of Potential Suspension -Section 601.233(a) of theTransportation Code states that acitation for an offense under Section601.191 (Operation of Motor Vehiclein Violation of Motor Vehicle LiabilityInsurance Requirement; Offense)issued as a result of Section 601.053

(Evidence of Financial Responsibility)must include, in type larger than othertype on the citation, except for thetype of the statement required bySection 708.105, the followingstatement: “A second or subsequentconviction of an offense under theTexas Motor Vehicle SafetyResponsibility Act will result in thesuspension of your driver’s license andmotor vehicle registration unless youfile and maintain evidence of financialresponsibility with the DPS for twoyears from the date of conviction. Thedepartment may waive therequirement to file evidence offinancial responsibility if you filesatisfactory evidence with thedepartment showing that at the timethis citation was issued, the vehicle wascovered by a motor vehicle liabilityinsurance policy or that you wereotherwise exempt from therequirements to provide evidence offinancial responsibility.”

Contract for Enforcement ofCertain Arrest Warrants - Section702.004(b) of the TransportationCode states, “The warning must statethat if the person fails to appear incourt as provided by law for theprosecution of the offense or fails topay a fine for the violation, the personmight not be permitted to register amotor vehicle in this state.” A similarwarning is required pursuant toSection 706.003 when a citation isissued for a traffic offense. (This isoften referred to as the Failure toAppear Program. The DPS vendorfor this program is OmnibaseServices.)

Notice of Potential Surcharge -Section 708.105 of the TransportationCode provides that a citation issuedfor an offense under a traffic law ofthis state or a political subdivision ofthis state must include, in type largerthan any other type on the citation, thefollowing statement: “A conviction ofan offense under a traffic law of thisstate or a political subdivision of this


state may result in the assessment onyour driver’s license of a surchargeunder the Driver ResponsibilityProgram.” The required warning is inaddition to any other warning requiredby law.

An inequity in the current lawgoverning surcharges is thatdefendants who are brought to courtsubsequent to arrest or summons arenot legally required to be providedany similar type of notice oradmonishment. While some judgeshave taken it upon themselves to makesuch admonishments, relatively fewdefendants in municipal and justicecourts in Texas actually come before ajudge to enter a plea and to besentenced. While most defendantsaccused of offenses to which theDriver Responsibility Program applyare issued a citation, there is anargument to be made that those whoare not fortunate enough to havereceive notice of the surcharges arenot entering informed pleas.

Data for Racial Profiling - Article2.132 of the Code of CriminalProcedure provides that each lawenforcement agency in this state shalladopt a detailed written policy onracial profiling. One of the sevenrequirements is for “collection ofinformation relating to traffic stops inwhich a citation is issued and arrestsresulting from those traffic stops,including information relating to: (A)the race and ethnicity of the individualdetained; and (B) whether a searchwas conducted and, if so, whether theperson detained consented to thesearch.” The data is then submitted tothe local governing body as part of anannual report on racial profiling.Section 543.202 of the TransportationCode requires courts to report thisinformation to DPS.

Right to a Driving Safety Courseor Motorcycle Operators Course -Article 45.0511(q) of the Code ofCriminal Procedure states “A notice to

appear issued for an offense to whichthis article applies must inform adefendant charged with an offenseunder Section 472.022, TransportationCode, an offense under Subtitle C,Title 7, Transportation Code, or anoffense under Section 729.001(a)(3),Transportation Code committed whileoperating a motor vehicle of thedefendant’s right under this article tocomplete a driving safety course ... .”The required boilerplate languagereads: “You may be able to requirethat this charge be dismissed bysuccessfully completing a driving safetycourse or a motorcycle operatortraining course. You will lose that rightif, on or before your appearance date,you do not provide the court withnotice of your request to take thecourse.”

“The Address Obligation”: Article45.057(h) of the Code of CriminalProcedure imposes an obligation of achild and/or parent to keep the courtinformed of the child’s currentaddress. For the obligation to becomeeffective, notice must be provided tothe child, parent, or both. One of thethree ways that a person may beplaced under such an obligation is bybeing provided with a copy of thelanguage of the subsection at the timethey are issued a citation. If localgovernments have any intention onholding young adults responsible foroffenses committed while they werestill children, understanding this areaof the law, and dispersing thisinformation at the time a citation isissued is a must.3

Special Rule for CommercialMotor Vehicles - Section 16.100 ofthe Texas Administrative Code states:“A traffic citation issued to a persondriving a commercial motor vehicle(CMV), or who is the holder of acommercial driver’s license orcommercial driver’s learner’s permit,for a violation of any law regulatingthe operation of vehicles on highways,must be on a form that contains the

following information: (1) the name,address, physical description, and dateof birth of the party charged; (2) thenumber, if any, of the person’s driver’slicense; (3) the registration number ofthe vehicle involved; (4) whether thevehicle was a CMV as defined in TexasTransportation Code, Chapter 522; (5)whether the vehicle was involved in thetransporting of hazardous materials;and (6) the date and nature of theoffense, including whether the offensewas a serious traffic violation asdefined in Texas Transportation Code,Chapter 522.”

3. Who is responsible for compilingand manufacturing a citation?

Texas law provides no authoritativeanswer to this question.

Since state law authorizes them to beissued by peace officers, a fairargument can be made that it is lawenforcement’s responsibility. However,there really is no correct answer to thequestion. TMCEC’s experiences withcourts suggest that the compilation andcontent of a citation is a collaborativeprocess between law enforcement andcourt administration.

4. Does Texas statutory lawconsider a person “under arrest” atthe time a citation is issued?

Yes, according to both the Code ofCriminal Procedure and theTransportation Code.

Section 543.003, Transportation Codestates:

An officer who arrests a person for aviolation of this subtitle punishable as amisdemeanor and who does not take theperson before a magistrate shall issue awritten notice to appear in court showingthe time and place the person is to appear,the offense charged, the name and addressof the person charged, and, if applicable,the license number of the person’s vehicle(emphasis added).

Chapter 14 of the Code of CriminalProcedure is entitled “Arrest Without


Warrant.” Article 14.06 provides:

(a) Except as provided by Subsection (b),in each case enumerated in this Code, theperson making the arrest or the personhaving custody of the person arrested shalltake the person arrested or have himtaken without unnecessary delay, but notlater than 48 hours after the person isarrested, before the magistrate who mayhave ordered the arrest, before somemagistrate of the county where the arrestwas made without an order, or, to providemore expeditiously to the person arrestedthe warnings described by Article 15.17of this Code, before a magistrate in anyother county of this state. The magistrateshall immediately perform the dutiesdescribed in Article 15.17 of this Code.

(b) A peace officer who is charging aperson, including a child, with committingan offense that is a Class C misdemeanor,other than an offense under Section49.02, Penal Code, may, instead oftaking the person before a magistrate,issue a citation to the person that containswritten notice of the time and place theperson must appear before a magistrate,the name and address of the personcharged, and the offense charged.

While the two statutes are by nomeans parallel, both theTransportation Code and the CodeCriminal provide, regardless ofwhether the defendant is broughtbefore a magistrate or issued acitation, that first the defendant mustfirst be under arrest.

As in all criminal cases, for a personto be lawfully arrested there must beprobable cause.4 Probable cause existswhere the facts and circumstancesknown by the officer stemming fromreasonable trustworthy informationare sufficient in themselves to warranta person of reasonable caution in thebelief that a particular person hascommitted or is committing anoffense.5

Nothing in Texas law authorizes theissuance of a citation on the basis of

something less than probable cause.Yet, because Texas criminal procedurecontains no mechanism to weed outcitations that are not predicated onprobable cause, defendants wishingto raise such arguments must firstcontest their guilt.

5. Does the “investigatory stop”of a motorist constitute a“seizure” under the 4th

Amendment?

Yes. The stopping of a motorist isalways a seizure, whether the officer’spurpose is to make a full custodialarrest or arrest and release with acitation.6

A “seizure” occurs when (1) asuspect’s freedom of movement isrestricted, and (2) the suspect isbrought under the officer’s controleither by submission to a show oflegal authority or physical restraint.7

“Investigatory stops” and “arrests”are both seizures. But, not allinvestigatory stops are arrests. An“investigatory stop” is a seizure oflimited scope and duration in which apeace officer is required to havereasonable suspicion that the suspectis involved in criminal activity.8 An“arrest” is a seizure of broader scopethat can occur either intentionally orbecause of its duration orintrusiveness exceeds the boundariesof an investigatory stop.9 As theCourt of Criminal Appeals explainedin Amores v. State, a peace officer isrequired to have probable cause tomake an arrest10.

Despite popular misconception, sincethe Supreme Court’s ruling in Delawarev. Prouse, peace officers do not havethe authority to stop motorists atrandom without reasonable suspicionto see their driver’s license or vehicleregistration.11 The narrow exceptionto the ruling involves checkpointstops that are governed by specialrules.12

Section 521.025(b) of the TexasTransportation Code states that apeace officer may stop and detain aperson operating a motor vehicle todetermine if the person has a driver’slicense. While this statute could be readto authorize exactly what Prouseprohibits, the statute should be read inlight of case law. The Court ofCriminal Appeals, though refusing toapply it retroactively, acknowledgedProuse as it relates to 521.025(b).13 Mostsubsequent case law can bedistinguished because the stop wascoupled with probable cause foranother offense. The Court ofCriminal Appeals, and subsequentlythe courts of appeals, have generallynot responded positively to peaceofficers’ efforts to use 521.025(b) as asubterfuge to stop drivers.14

6. Who has the legal authority toissue a citation?

The same people who have the legalauthority to make arrests. Texasstatutory law only authorizes “peaceofficers” to issue citations.15

7. Under state law, who has theauthority to issue citations for cityordinance violations?

Once again, only peace officers areauthorized under state law to issuecitations.

Many municipalities have adoptedlocal ordinances for non-peaceofficers, such as code enforcementpersonnel, to issue what they refer toas citations. In large cities where thenumber of code violations wouldeasily overwhelm local peace officersand in small towns where local lawenforcement may be nonexistent, orlimited by interlocal agreements withcounty government, the adoption ofsuch an ordinance is necessary toeffectively enforce ordinances relatingto public safety and maintaining qualityof life for its citizens. Ostensibly suchordinances are adopted pursuant toSection 51.001 of the Texas Local


Government Code which states that a“City has general authority to adoptan ordinance or police regulation thatis for the good government, peace ororder of the City and is necessary orproper for carrying out a powergranted by law to the City.”

A word of caution: as explained bythe Office of the Texas AttorneyGeneral, the manner in which suchcitations are issued must bedistinguished from those issued bypeace officers.

While the actions of “CodeEnforcement Officers” in stoppingpeople … and questioning them maynot per se constitute arrests, very littlemore force may be necessary beforesuch a situation becomes one in whicha ‘persons liberty of movement isrestricted or restrained.’ Amores v. State,816 S.W.2d. 407, 411 (Tex. Crim. App.1991).16

Accordingly, cities adopting suchordinances are encouraged to establishclear guidelines and provide trainingfor key personal regulating the mannerin which such citations are issued.

8. May a Texas peace officer issuea citation for offenses other thanfine-only offenses?

No. While other states authorizecitations to be used for offenses otherthan fine-only offenses, Texas lawcontains no similar expressauthorization.

Article 14.06(b) of the Code ofCriminal Procedure provides that apeace officer “who is charging aperson, including a child, withcommitting an offense that is a ClassC misdemeanor … may instead oftaking the person before a magistrate,issue a citation to the person … .”

Chapter 543 of the TransportationCode contains no similar referenceslimiting the issuance of citations toClass C misdemeanors. In fact,Section 543.002 merely makesreferences to “persons arrested for a

violation of this subtitle punishable asa misdemeanor.” The subtitle beingreferenced is Subtitle C – The Rules ofthe Road.

While most offenses in Subtitle C arefine-only offenses, it also containsClass A and B misdemeanors, as wellas some felonies.17 There is no case lawaddressing the issuance of citations forsuch offenses, presumably becausedefendants in such cases are eithersubject to full custodial arrest orsummoned to court. A review ofinstructors’ outlines contained on theTexas Commission on LawEnforcement Standards and Educationwebsite suggests that their curriculumdoes not construe the law to authorizecitations to be issued for anyTransportation Code offense otherthan fine-only offenses.18

9. Are peace officers required toissue citations in lieu of arrests formost fine-only offenses?

No, in fact Section 543.004 of theTransportation Code states that peaceofficers are only required to issuecitations in two instances: “An officershall issue a written notice to appear ifthe offense charged is either (1)speeding or (2) Section 49.03 of thePenal Code - open container ofalcohol.”19

In 2001 the U.S. Supreme Court in anappeal of a civil rights law suit wasasked to adopt a construction of the4th Amendment that would haveclassified all full custodial arrests fornon-breach of the peace, fine-onlyoffenses as unreasonable seizures. Theappeal of the dismissed lawsuit,Atwater v. City of Lago Vista, stemmedfrom an arrest in which multiple ClassC misdemeanors were filed in a Texasmunicipal court and the plaintiff wassubject to full custodial arrest, ratherthan issued citations. The Court in a 5-4 decision rejected the contention thata peace officer’s discretionary authorityto either issue a citation or make a fullcustodial arrest violated the 4th

Amendment.20

During the 78th Texas Legislature of2003, Senate Bill 1597 was passed inresponse to the dissent in Atwater. Thebill would have mandated that peaceofficers issue citations for fine-onlyoffenses, excluding breach of thepeace offenses. In his vetoproclamation, Governor Rick Perryexplained that the legislation wouldrequire a supervisor’s review of aClass C misdemeanor arrest, impedingan officer’s ability to make arrests.Governor Perry explained that he hadconsistently opposed efforts to restricta peace officer’s discretionary arrestpowers and those arrests for Class Cmisdemeanor offenses weresupported by the Supreme Court’sdecision.21

10. What happens if a peaceofficer fails to comply with the“release with promise to appear”provisions of the TransportationCode?

Section 543.008 of the TransportationCode states “A violation by an officerof Sections 543.003-543.007 ismisconduct in office and the officer issubject to removal from the officer’sposition.”

Presumably, this provision was writtento be some sort of safeguard on lawenforcement authority and to protectdrivers from capricious ordiscriminatory arrests.

How this statute operates, however, isunclear. There is no case law orsecondary source addressing thepractical application of this provision.The statute does not state who, if anypublic official or prosecutor isresponsible for its enforcement.

Efforts to locate any record of apeace officer being removed forrequiring a person accused of a fine-only offense to provide moreinformation than the law requires, or

Citations continued on page 24


*Section 601.053(a), T.C., lists the following documents and evidence of financial responsibility:• A motor vehicle liability insurance policy covering the vehicle that satisfies Subchapter D (motor vehicle liability insurance requirements) or a

photocopy of the policy;• A standard proof of motor vehicle liability insurance form prescribed by the Texas Department of Insurance under Section 601.081 and issued by

a liability insurer for the motor vehicle;• An insurance binder that confirms the operator is in compliance of Chapter 601, T.C.;• A surety bond certificate issued under Section 601.121, T.C. (bond filed with the Texas Department of Public Safety);• A copy of a certificate of deposit with the appropriate county judge covering the vehicle issued under Section 601.123, T.C. (A deposit of cash or

cashier check filed with the county judge in the amount of at least $55,000); or• A certificate or photocopy of the certificate of self-insurance covering the vehicle issued under Section 601.124, T.C. (Person must have at least 25

motor vehicles registered in his/her name to be eligible for self-insurance.)

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*A defendant is considered to be convicted in a case if:• A judgment, a sentence, or both are imposed on the person;• The person receives community supervision, deferred adjudication, or deferred disposition;• The court defers final disposition of the case or imposition of the judgment and sentence. Section 133.101, L.G.C.

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RESOURCES FOR YOUR COURT

Texas Road Tips 2006TMCEC has received sets of thebooklet, Texas Road Tips 2006, for useby judges, prosecutors and clerkswhen speaking to civic and schoolgroups. This colorful 5" x 6" spiralbound booklet provides brief,introductory information on thefollowing topics: Aggressive Driving;Collisions; Driving While Intoxicated;Highway Driving; Motorcycles &Bicycles; Pedestrians & School Zones;Safety Seats & Safety Belts; UnderageDrinking; Violations & Cautions;Work Zones & Road Signs

It is an excellent handout for use whenspeaking before adult and teenagegroups. For a complimentary set (upto 50 copies per court), contactTMCEC (800/252-3718 [email protected]). Only a limitednumber are available – please placeyour order ASAP. For larger quantities,contact Tracie Mendez at TxDOT([email protected]).

Spring ConferencesLifesavers 2007The National Conference on HighwaySafety Priorities 25th AnniversaryMeeting is being held March 25-27,2007 at the Hilton Chicago, Chicago,Illinois. Registration Fee: $300 (after 2/9/07). See www.lifesaversconference.org or call 703/922.7944 for moreinformation.

National Judicial College CoursesMay 14-24, 2007 Traffic Issues in the 21st

CenturyJune 4-7, 2007 Criminal Pretrial andPost-trial ChallengesAugust 13-16, 2007 Criminal Pretrialand Post-Trial Challenges: Solutions for Bail,Supervision, and SentencingOctober 15-16, 2007 Ethics for Judges

For more information, call 800/25-JUDGE.


Annual ReportsAnnual Reports from both the Office of CourtAdministration (OCA) and the State Commission onJudicial Conduct are now available online. Both are excellentresources for judges and court support personnel. On thefollowing page are the most recent Activity Report forMunicipal Courts and Court Structure of Texas charts. Note thatOCA reports that there are now 1,396 municipal judges inTexas and over 7.8 million cases were filed in Fiscal Year2006.

The State Commission on Judicial Conduct reports thatwhile municipal judges make up 38% of the Texas judiciary,only seven percent of the cases filed with the Commissionare complaints about municipal judges. This issue of TheRecorder also contains the Examples of Improper JudicialConduct from their Annual Report (see page 19).

For a complete copy of these annual reports, go to:http://www.courts.state.tx.us/pubs/annual-reports.asp andhttp://www.scjc.state.tx.us/Annual_Report_2006.pdf.

CourToolsCourTools, developed by the National Center for StateCourts, is designed to provide courts with a common setof 10 indicators and clear methods to measureperformance in a meaningful and manageable manner.NCSC drew on the civic ideals and major performanceareas unique to courts, as defined by the Trial CourtPerformance Standards (TCPS). These include providingaccess to justice, reducing delay, and ensuring fairness.CourTools includes other success factors linked tomanagement effectiveness that are relevant to all publicinstitutions, such as fiscal responsibility, client-customersatisfaction, and the effectiveness and efficiency of internalprocesses.

To download a free copy of CourTools, go towww.courtools.org. If you need assistance with CourTools,contact NCSC at 800/466-3063 or [email protected].

The Governmental Collectors Association of Texas (GCAT) is pleased to announce the Eighth Annual GCATConference has been scheduled for May 29-31, 2007. GCAT has been at the forefront of innovations in court collectionssince its inception in 1999. Through its workshops and educational programs, GCAT has helped many Texas cities andcounties increase court collections revenue. Sessions scheduled include Achieving a Higher Level Through Focus, LegislativeUpdate & Overview, Justice & Municipal Court Collections, County & Felony Court Collections, Navigating Negativity, An Auditor’sView of Collections, Collection Tools & Resources, Using In-House Computer Resources, the Comptroller’s Side of Collections, and Deal orNo Deal. For more information, visit the GCAT website at www.gov.cat.net

May 29-31, 2007

Marriott Horseshoe Bay ResortHorseshoe Bay, Texas

GCAT also sponsors a National Conference brings together collection professionals from both public and private sectors toexamine ideas, technologies, and tools to improve court collections.

September 24-26, 2007

Golden Nugget HotelLas Vegas, Nevada

For more information, visit the GCAT web site at www.gov.cat.net or call 281/748-3484 (Lorena Gomez).

2007 GCAT Conferences


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Reprinted from the 2006 Annual Report of the Office of Court Administration. Used with permission.


COURT STRUCTURE OF TEXASSEPTEMBER 1, 2006

Criminal AppealsCivil Appeals

-- Jurisdiction --

Supreme Court

(1 Court -- 9 Justices)

Municipal Courts3

(914 Cities -- 1,396 Judges)

Court of Criminal Appeals

(1 Court -- 9 Judges)

Justice Courts2

(825 Courts -- 825 Judges)

-- Statewide Jurisdiction --

-- Jurisdiction --

Ap

peals

of

Death

Sen

ten

ces

-- Jurisdiction --

Final appellate jurisdiction in civilcases and juvenile cases.

Courts of Appeals

(14 Courts -- 80 Justices)

District Courts


County-Level Courts


-- Regional Jurisdiction --

-- Jurisdiction --

(432 Districts Containing One or More Counties)

(One Court in Each County) (Established in 84 Counties) (Established in 10 Counties)

(Established in Precincts Within Each County)

-- Jurisdiction -- -- Jurisdiction -- -- Jurisdiction --

Constitutional County Courts (254) County Courts at Law (218) Statutory Probate Courts (17)

Intermediate appeals from trial courtsin their respective courts of appealsdistricts.

All civil, criminal, original and

appellate actions prescribed by

law for constitutional county

courts.

In addition, jurisdiction over

civil matters up to $100,000

(some courts may have higher

maximum jurisdiction amount).

Limited primarily

to probate matters.

Final appellate jurisdiction incriminal cases.

State Highest

Appellate Courts

State Intermediate

Appellate Courts

State Trial Courts

of General and

Special Jurisdiction

County Trial Courts of

Limited Jurisdiction

Local Trial Courts of

Limited Jurisdiction

Original jurisdiction in civil actions over $200 or $500, divorce,title to land, contested elections. Original jurisdiction in felony criminal matters.Juvenile matters.

1

12 district courts are designated criminal district courts; some are directed to give preference to certain specialized areas.others

Original jurisdiction in civil actions

between $200 and $5,000.

Probate (contested matters may be

transferred to District Court).

Exclusive original jurisdiction over

misdemeanors with fines greater

than $500 or jail sentence.

Juvenile matters.

Appeals de novo from lower courts

or on the record from municipal

courts of record.

Criminal misdemeanors punishable by fine only (no confinement).Exclusive original jurisdiction over municipal

4criminal cases. Limited civil jurisdiction in cases involvingdangerous dogs.Magistrate functions.

ordinance

Civil actions of not more than $5,000.Small claims.Criminal misdemeanors punishable by

Magistrate functions.fine only (no confinement).

-- Statewide Jurisdiction --

2 All justice courts and most municipal courts are not courts of record. Appeals from these courts are by trial de novo in the county-level courts, and in some instances in the district courts.3 Some municipal courts are courts of record -- appeals from those courts are taken on the record to the county-level courts.4 An offense that arises under a municipal ordinance is punishable by a fine not to exceed: (1) $2,000 for ordinances that govern fire safety, zoning, and public health or (2) $500 for all others.

1 The dollar amount is currently unclear. (See page 8.)


ETHICS UPDATE

The following are examples of judicialmisconduct that resulted in disciplinaryaction by the State Commission onJudicial Conduct in fiscal year 2006.These are illustrative examples ofmisconduct and do not representevery disciplinary action taken by theCommission in fiscal year 2006. Thesummaries below are listed in relationto specific violations of the TexasCode of Judicial Conduct, the TexasConstitution, and other statutes orrules. They are also listed in descendingorder of the severity of thedisciplinary action imposed, and mayinvolve more than one violation. Thefull text of any public discipline ispublished on the Commission websiteand may be requested by contactingthe Commission.

These sanction summaries areprovided with the intent to educateand inform the judiciary and thepublic regarding misconduct that theCommission found to warrantdisciplinary action in fiscal year 2006.The reader should note that thesummaries provide only generalinformation and omit mitigating oraggravating facts that the Commissionconsidered when determining the levelof sanction to be imposed.Additionally, the reader should notmake any inferences from the factsituations provided in these summaries.It is the Commission’s sincere desirethat providing this information willprotect and preserve the public’sconfidence in the integrity, impartialityand independence of the judiciary andfurther assist the judiciary inestablishing, maintaining and enforcingthe highest standards of judicial andpersonal conduct.

Examples of Improper Judicial ConductCANON 2A: A judge shallcomply with the law and shouldact at all times in a manner thatpromotes public confidence in theintegrity and impartiality of thejudiciary.

• After finding a woman guilty ofneglecting her horses, the judgesentenced her to 30 days in jail andordered a restricted diet of breadand water for the first three days.After finding a man guilty ofillegally dumping chromium fromhis metal-plating business, the judgeordered him to drink “from a non-toxic volume of water containingthe pollutants dumped into thedumpsters.” Although the judgewas advised by county officials thatneither sentence could be enforcedunder state law, he failed to amendor withdraw the “bread and water”or “toxic sludge cocktail”sentencing conditions. The judge’sactions received widespread mediaattention. [Violation of Canon 2Aof the Texas Code of JudicialConduct and Article V, §1-a(6)A ofthe Texas Constitution.] PublicAdmonition of a Criminal County Courtat Law Judge. (05/04/06).

• While serving as a visiting judge inthe State of Texas, the judgepleaded guilty to violation of thefederal conflict of interest statutes.The criminal case against the judgereceived media attention, castingpublic discredit upon the integrityof the judiciary. [Violation ofCanon 2A of the Texas Code ofJudicial Conduct and 25 Article V,§1-a(6)A of the TexasConstitution.] Public Admonition of aFormer Appellate Justice. (06/15/06).

• The judge permitted the local countyattorney to generate and providecourt referral forms to defendants inplea bargain cases, directing them totake domestic violence and otherclasses, without prior court reviewor approval. The judge alsopermitted the local county attorneyto generate and sign Notices ofSetting with the court’s captiondirecting defendants to appear forcourt hearings. Further, the judgefailed to comply with the law andfailed to maintain professionalcompetence in the law when hefailed to set a defendant’s case fortrial after she entered a plea of “notguilty;” failed to review and approvethe terms of the defendant’s pleabargain agreement with the localcounty attorney; and improperlyordered the defendant to pay courtcosts upon dismissal of her case.[Violation of Canons 2A, 2B and3B(2) of the Texas Code of JudicialConduct.] Private Warning and Orderof Additional Education of a CountyJudge. (08/31/06).

CANON 2B: A judge shall notallow any relationship to influencejudicial conduct or judgment. Ajudge shall not lend the prestige ofjudicial office to advance theprivate interests of the judge orothers; nor shall a judge convey orpermit others to convey theimpression that they are in aspecial position to influence thejudge. A judge shall not testifyvoluntarily as a character witness.

• The judge’s close relationship withopposing counsel, the daughter ofhis longtime court coordinator,influenced his conduct and judgmentin at least two cases, causing litigants


and their counsel to form legitimateconcerns that the judge would notbe fair, neutral, and impartial inproceedings involving this attorney.Because of this relationship, thejudge failed to diligently review andquestion the pleadings presented tohim by the attorney, whicheffectively deprived a father ofpossession and custody of his childon the eve of her mother’s funeral,without any opportunity for ahearing to determine whether therepresentations made by thepetitioner were true or what was inthe best interests of the child. Inaddition, the judge’s statementsabout sanctioning an out-of-townattorney, made in open court, wereperceived as a threat and confirmedto that lawyer that opposing counselwas in a special position to influencethis judge. [Violation of Canons 2Band 3B(4) of the Texas Code ofJudicial Conduct.] Public Warning of aDistrict Judge. (05/30/06).

CANON 3B(2): A judge should befaithful to the law and shallmaintain professional competencein it. A judge shall not be swayedby partisan interests, public clamor,or fear of criticism.

• The judge failed to comply with thelaw and failed to maintainprofessional competence in the lawwhen he dismissed an eviction suitwithout notice or hearing, thenreinstated the case without notice orhearing. Additionally, the judge andhis staff failed to maintain completeand accurate court records.[Violation of Canons 2A and 3B(2)of the Texas Code of JudicialConduct.] Private Warning and Orderof Additional Education of a Justice ofthe Peace.(05/24/06).

• The judge demonstrated a lack ofprofessional competence in the lawwhen he failed to comply with theprocedural requirements set out inthe Texas Property Code, the Texas

Rules of Civil Procedure, and theTexas Civil Practice and RemediesCode in issuing a Writ ofPossession. [Violation of Canon3B(2) of the Texas Code ofJudicial Conduct]. Private Order ofAdditional Education of a Justice of thePeace. (05/24/06).

• The judge demonstrated a lack ofprofessional competence in the lawwhen he failed to announce hisruling in open court, as required byRule 557 of the Texas Rules ofCivil Procedure. [Violation of3B(2) of the Texas Code ofJudicial Conduct.] Private Order ofAdditional Education of a Justice of thePeace. (06/15/06).

• The judge demonstrated a lack ofprofessional competence in the lawwhen he dismissed a trafficdefendant’s speeding ticket withouta motion from the prosecutor andbased on erroneous representationsfrom the city administrator that theticket had been issued outside thecity limits. [Violation of Canon3B(2) of the Texas Code ofJudicial Conduct.] Private Warningand Order of Additional Education of aMunicipal Judge. (07/10/06).

• The judge demonstrated a lack ofprofessional competence in the lawwhen she went forward with a trialand found a traffic defendant guiltyin absentia, then issued an arrestwarrant against the defendant forfailure to appear withoutcompleting the underlyingpaperwork laying out the requisitesof a written complaint upon whichto base the warrant. Further, thejudge erred when she detained thedefendant until she was able to paythe outstanding fine assessed againsther in the underlying traffic caseand failed to afford the defendantthe opportunity to post bond tosecure her release from custody.[Violation of Canon 3B(2) of theTexas Code of Judicial Conduct.]

Private Order of Additional Education ofa Justice of the Peace. (07/27/06).

CANON 3B(4): A judge shall bepatient, dignified and courteous tolitigants, jurors, witnesses, lawyersand others with whom the judgedeals in an official capacity, andshould require similar conduct oflawyers, and of staff, court officialsand others subject to the judge’sdirection and control.

• The judge made inappropriate andoffensive statements to a femalepolice officer following herinvestiture, which statementsdemonstrated more than a merelapse of judgment. As a publicofficial charged with upholding thehonor and integrity of the judiciary,the judge knew or should haveknown that his behavior lackeddignity and would be perceived asoffensive, disrespectful, anddiscourteous not just to the femaleofficer, but to her supervisor and thecourt employee who witnessed theincident. [Violation of Canons 2Aand 3B(4) of the Texas Code ofJudicial Conduct.] Public Admonition ofa Former Municipal Court Judge. (03/06/06).

• The judge made demeaning anddiscourteous comments to certainlitigants appearing before his court ina manner that did not reflect theappropriate demeanor expected of ajudicial officer. [Violation of Canon3B(4) of the Texas Code of JudicialConduct.] Private Reprimand and Orderof Additional Education of a DistrictJudge. (05/04/06).

CANON 4D(1): A judge shallrefrain from financial and businessdealings that tend to reflectadversely on the judge’simpartiality, interfere with theproper performance of the judicialduties, exploit his or her judicialposition, or involve the judge infrequent transactions with lawyers


or persons likely to come beforethe court on which the judgeserves. This limitation does notprohibit either a judge orcandidate from soliciting funds forappropriate campaign orofficeholder expenses as permittedby state law.

• Through his efforts to assist histhen-wife’s company to obtain anexclusive contract with the county toprovide services to the probatecourt, which efforts included a letterof recommendation from thejudge, and through the numerouscourt appointments given to thejudge’s friend and business partnerwho owed him money, the judgelent the prestige of judicial office toadvance his own private interestsand the private interests of both histhen-wife and his business partner,and conveyed the impression thatthese individuals were in specialpositions to influence him.Furthermore, the judge’s businessrelationships with his wife and hisbusiness partner reflected adversely

on the judge’s impartiality andinvolved the judge in frequenttransactions with persons likely tocome before the court. The judge’sactions received negative mediaattention, raising serious questionsabout the judge’s impartiality,integrity, and independence andcasting public discredit upon thejudiciary and administration ofjustice. [Violation of Canons 2B and4D(1) of the Texas Code of JudicialConduct and Article V, §1-a(6)A ofthe Texas Constitution.] PublicReprimand of a Probate Judge. (08/31/06).

Texas Constitution, Article V,Section 1-a(6)A. Any Justice orJudge of the courts established bythis Constitution or created by theLegislature as provided in Section1, Article V, of this Constitution,may, subject to the otherprovisions hereof, be removed fromoffice for willful or persistentviolation of rules promulgated bythe Supreme Court of Texas,incompetence in performing the

duties of the office, willfulviolation of the Code of JudicialConduct, or willful or persistentconduct that is clearly inconsistentwith the proper performance of hisduties or casts public discreditupon the judiciary oradministration of justice. Anyperson holding such office may bedisciplined or censured, in lieu ofremoval from office, as providedby this section.

• The judge’s conduct resulted in thefiling of a lawsuit by an employeeagainst the county which receivedextensive media coverage. As apublic official charged withupholding the honor and integrityof the judiciary, the judge knew orshould have known that his actionswould cast public discredit upon theintegrity of the judiciary. [Violationof Article V, §1-a(6)A of the TexasConstitution.] Private Admonition of aJustice of the Peace. (05/04/06).

_________Reprinted with permission from the 2006Annual Report of the State Commission onJudicial Conduct.

for illegally subjecting a person to fullcustodial arrest were fruitless.

Next Time

In Part II of this article we will delveinto some more complicated issuespertaining to citations, including thecircumstances where a peace officer isauthorized and prohibited fromissuing a citation, the consequence ofrefusing to sign a citation, why citationsshould not be mailed, and otherconstitutional and procedural issuesrelating to charging and trial.______________1 Black’s Law Dictionary, Sixth Edition (West1990).2 Section 543.003.3 See, Ryan Kellus Turner, “Holding Youth

Accountable: What Peace Officers,Prosecutors, and Judges Need to Knowabout HB 2319 and Fine-Only Offenses,and Juveniles Now Adults” 13 MunicipalCourt Recorder 1 (December 2003).5 Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim. App. 1991) citing Brinegar v. U.S.(1949).6 U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976);U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975).7 California v. Hodari D., 499 U.S. 621 (1991)8 U.S. v. Cortez, 449 U.S. 411 (1981).9 Kaupp v. Texas, 538 U.S. 411 (2002).10 Supra, note 5.11 440 U.S. 648 (1979).12 Michigan v. Sitz, 496 U.S. 444 (1990).13 Luckett v. State, 586 S.W.2d 524 (Tex.Crim. App. 1979)14 McMillian v. State, 609 S.W.2d 784 (Tex.Crim. App. 1980).

15 Chapter 543 of the Transportation Code;Article 14.06(b) Code of CriminalProcedure.16 Texas Attorney General Letter OpinionNo. 95-027 (1995).17 For example, Section 547.614 (knowinglyinstalling a defective airbag) is a Class Amisdemeanor, Section 548.603 (displayingfictitious inspection certificate or insurancedocument) is a Class B misdemeanor,Section 548.603(b) (making or possessing afictitious inspection certificate or insurancedocument) 3rd degree felony.18 http://www.tcleose.state.tx.us/GuideInst/instructor_outlines.htm.19 Notably Section 49.03 of the Penal Codewas repealed in 2001 and was recodified asSection 49.031. The Transportation Codedoes not reflect this change.20 532 US 318 (2001).21 http://www.governor.state.tx.us/divisions/press/bills/sb1597.

Citations continued from page 14


FROM THE CENTER

Spring 2007 First Friday WebinarsLooking for an extra hour of continuing education forCLE or clerk certification? TMCEC will be offeringinteractive, web-based training programs on the first Fridayof each month from 10:30–11:30 a.m. Please register bylogging on to http://tmcec.premierglobal.com.

Webinars are free of charge to participants, but you willstill be charged any applicable local fees for the use of yourInternet. Participants will need a computer, an Internetconnection, and a telephone line for toll-freeteleconferencing.

Upcoming Webinar Schedule:

February 2, 2007 Criminal Law Basics: Hearsay Evidence,Professor Steven Goode, The Universityof Texas School of Law

March 2, 2007 No Webinar, Texas IndependenceDay

March 9, 2007 Problem Solving Courts, Judge JohnVasquez, Austin Municipal Court(View the above two and all previouslyconcluded webinars atwww.tmcec.com/webinar.html.)

April 6, 2007 Fatigued and Distracted Drivers, Judge C.Victor Lander, Dallas Municipal Court

May 4, 2007 The Role of the Administrative Judge of theJudicial Region, Mena Ramon, DeputyGeneral Counsel, Office of CourtAdministration

June 1, 2007 Juvenile Confessions, Sharon Pruitt, AssistantAttorney General, Office of theAttorney General

July 6, 2007 Tentative: Crime Victims, SuzanneMcDaniel, Office of the AttorneyGeneral

Prosecutor SeminarTMCEC will offer the second of two 12-hour prosecutorprograms on May 23-24, 2007 at the Omni Westside Hotelin Houston. The TMCEC Annual Municipal ProsecutorsConference is the only program in the state designed tospecifically assist such attorneys in obtaining and maintainingprofessional competence. Presentations will focus on ethics,as well as procedural, substantive, and case law. Municipalprosecutors may register for the 12-hour prosecutor’sconference for $250. Housing, two breakfasts, one lunch,and course materials are included in the fee. Municipalprosecutors who do not need housing at the conferencehotel may pay a $100 registration fee. Prosecutors whomust cancel for personal or professional reasons will becharged a $100 cancellation fee if notice of cancellation isnot received five working days prior to the conference. Aregistration fee of $300 (or $150, if no housing is needed)will be charged for non-municipal prosecutors or attorneys.A registration form can be found in the TMCECAcademic Schedule or on page 27 in this journal. A flyerwill be mailed to all courts in early May.

Note: In FY08, there will be an additinal fee of $100 forMCLE credit.

Bailiffs and Warrant OfficersCorpus Christi Conference

There will be a 12-hour bailliffs and warrant officersconference June 11-12, 2007 in Corpus Christi at the OmniHotel Marina Tower. Bailiffs, warrant officers, and contractsecurity personnel are encouraged to attend. A four-hourpre-conference will be offered on Sunday, June 10th on atopic to be determined. Tentatively, regular session coursesare: Force Options, Violence in the Courtroom, Using Non-verbalCommunication, Bailiffs 101, Methods of Improving Collections,Warrants: From the Code to the Field, Sovereign Defendants, JuvenileIssues in Municipal Court, Civil Process, Served!, TransportingPrisoners, Fraudulent Documents, and Citations.

The course has been pre-approved for 12 hours ofTCLEOSE continuing education credit. Another fourhours of credit will be available for attending the pre-conference. The fee for attending the conference is $50 andincludes three meals and housing accommodations for thetwo program nights at the Omni. To register, please use theregistration form found on page 27 in this journal.


Conference Date(s) City Hotel Information

12-Hour Regional Judges and Clerks April 12-13, 2007 Amarillo Ambassador Hotel, 3100 I-40 West

12-Hour Low Volume Seminar April 24-25, 2007 Tyler Holiday Inn Tyler, 5701 SouthBroadway

12-Hour Regional Clerks May 1-2, 2007 S. Padre Island Radisson South Padre Island, 500Padre Blvd.

12-Hour Regional Judges May 7-8, 2007 S. Padre Island Radisson South Padre Island, 500(Attorneys) Padre Blvd.

12-Hour Regional Judges May 9-10, 2007 S. Padre Island Radisson South Padre Island, 500(Non-Attorneys) Padre Blvd.

12-Hour Prosecutors May 23-24, 2007 Houston Omni Houston Hotel at Westside,13210 Katy Freeway

8-Hour Court Interpreters May 23, 2007 Houston Omni Houston Hotel at Westside,13210 Katy Freeway

12-Hour Bailiffs/Warrant Officers June 11-12, 2007 Corpus Christi Omni Corpus Christi Hotel MarinaTower, 707 North Shoreline

12-Hour Court Administrators June 13-14, 2007 Corpus Christi Omni Corpus Christi Hotel MarinaTower, 707 North Shoreline

12-Hour Regional Judges and Clerks June 27-28, 2007 Odessa MCM Elegante, 5200 E. University

32-Hour New Judges and Clerks July 16-20, 2007 Austin Omni Hotel Southpark, 4140Governor’s Row

2007 Legislative Updates: August 7, 2007 Lubbock Holiday Inn Hotel & Towers,801 Avenue Q

August 14, 2007 Houston Omni Westside, 13210 Katy Freeway

August 17, 2007 Austin Omni Southpark, 4140 Governor’sRow

2006-2007 TMCEC Academic Schedule At-A-Glance

Reminder: Alternative Judicial EducationExperienced municipal judges who have completed two years of TMCEC courses may opt to fulfill the 12-hour manda-tory judicial education requirements for 2006-2007 by attending a course offered by an approved continuing legal educa-tion provider. The accredited providers are the American Academy of Judicial Education, the Harvard Law School, theHouston Law School and Foundation, the Juvenile Law Section of the State Bar of Texas Professional DevelopmentPrograms, the Texas Defense Lawyers Project, the Texas Justice Courts Training Center, the Texas Juvenile ProbationCommission, and the Texas Municipal Courts Association. Please check with TMCEC for the most up-to-date list ofapproved providers. The course must relate to the jurisdiction of the municipal courts and be at least 12 hours in length.Video, audio, and online programs are ineligible. After an initial two-year period, judges may “opt out” only every otheryear. Judges are asked to complete an Intent to Opt Out form prior to April 30, 2007. This form is found on page 13 inthe TMCEC Academic Schedule or online at www.tmcec.com/FY07/AcadCat07.pdf. If you have questions, pleasecontact Hope Lochridge at TMCEC (800/252-3718).


TEXAS MUNICIPAL COURTS EDUCATION CENTER FY07 REGISTRATION FORM

Conference Date: _____________________________ Conference Site: ____________________________Check one: Non-attorney Judge ($50 fee) Clerk ($50 fee) Prosecutor ($250 fee)

Attorney Judge not seeking CLE credit ($50 fee) Court Administrator ($50 fee) Prosecutor not requiring a room ($100 fee) Attorney Judge seeking CLE credit ($150 fee) Assessment Clinic ($100 fee) Bailiff/Warrant Officer* ($50 fee)

TMCEC computer data is updated from the information you provide. Please print legibly and fill out form completely.(Please print legibly): Last Name: __________________________________ First Name : _____________________________ MI: __________Names also known by: ________________________________________________________________________ Female/Male: ____________Position held: _______________________________________________________________________________________________________Date appointed/Hired/Elected:____________ Years experience: ________ Emergency contact:_____________________________________

HOUSING INFORMATION

TMCEC will make all hotel reservations from the information you provide on this form. TMCEC will pay for a single occupancy roomat all seminars: four nights at the 32-hour seminars, three nights at the 24-hour seminars/assessment clinics and two nights at the 12-hourseminars. To share with another seminar participant, you must indicate that person’s name on this form.

I need a private, single-occupancy room. I need a room shared with a seminar participant. [Please indicate roommate by entering seminar participant’s name:

________________________________________________________________ (Room will have 2 double beds.)] I need a private double-occupancy room, but I’ll be sharing with a guest. [I will pay additional cost, if any, per night]

I will require: 1 king bed 2 double beds I do not need a room at the seminar.

How will you be traveling to seminar? Driving Flying Arrival date: _______________________________________________________ Smoker Non-Smoker

Municipal Court of: _______________________________________________________ Email Address:Court Mailing Address: __________________________________________ City: ____________________________ Zip: ________________Office Telephone #: __________________________________________ Court #: _____________________ FAX: _____________________Primary City Served: __________________________________________ Other Cities Served: ______________________________________STATUS (Check all that apply):

Full Time Part Time Attorney Non-Attorney Presiding Judge Associate/Alternate Judge Justice of the Peace Mayor (ex officio Judge) Court Administrator Court Clerk Deputy Court Clerk Other: Bailiff/Warrant Officer* Prosecutor

*Bailiffs/Warrant Officers: Municipal judge’s signature required to attend Bailiff/Warrant Officer programs.Judge’s Signature: _________________________________________________________________ Date: _______________________Municipal Court of: _______________________________________________________________________________________________

I certify that I am currently serving as a municipal judge, prosecutor or court support personnel in the State of Texas. I agree that I will beresponsible for any costs incurred if I do not cancel five (5) working days prior to the conference. Participants in the Assessment Clinics mustcancel in writing two weeks prior to the seminar to receive refund. I will cancel by calling the Center. If I must cancel on the day before theseminar due to an emergency, I will call the TMCEC registration desk at the conference site. If I do not attend the program, TMCEC reserves theright to invoice me or my city for meal expenses, course materials and, if applicable, housing ($85 plus tax per night). I understand that I will beresponsible for the housing expense if I do not cancel or use my room. If I have requested a room, I certify that I live at least 30 miles or 30minutes driving time from the conference site. Payment is due with registration form. Registration shall be confirmed upon receipt ofregistration form and payment.

Participant Signature ______________________________________________________________ Date ______________________________

PAYMENT INFORMATION Check Enclosed (Make checks payable to TMCEC.) Credit Card (Complete the following; $2.00 will be added for each registration made with credit card payment.)

Credit Card Registration: (Please indicate clearly if combining registration forms with a single payment.)Credit Card Number Expiration Date Verification Number

Credit card type: ________________________________ _____________ (found on back of card) MasterCard Name as it appears on card (print clearly): _____________________________________________ _______________ Visa Authorized Signature: _____________________________________________

Please return completed form with payment to TMCEC at 1609 Shoal Creek Boulevard, Suite 302, Austin, TX 78701.Fax registration forms with credit card information to 512/435-6118.


Legislative Update Registration Form

TMCEC will send you hotel information upon receipt of your registration form and the $50 fee ($100 for defense lawyers & council members). Please add $2 for all credit card payments. If you need lodging, you will have to make your own reservation and cover the cost with the hotel.

Please check the program you would like to attend and return completed form with the registration fee to TMCEC. For credit card payments, please add $2 for each registration.

HOUSTON LUBBOCK AUSTIN August 14, 2007 August 7, 2007 August 17, 2007 Omni Houston Westside Holiday Inn Towers Omni Hotel Southpark Telephone: 281.558.8338 Telephone: 806.763.1200 Telephone: 512.448.2222

Course lasts from 9:00 a.m. to 4:00 p.m. with an optional Q&A from 4:00-5:00 p.m. REGISTRATION FORM: Name (please print legibly):

Street: City: Zip:

Office Telephone #: Court #: FAX:

Primary City Served: Other Cities Served:

Email Address: Check all that apply:

Full Time Part Time Attorney Non-Attorney Prosecutor Defense Lawyer ($100)

Presiding Judge Associate/Alternate Judge Justice of the Peace Mayor & Council ($100)

Court Administrator Court Clerk Deputy Court Clerk Other ($100):

Bailiff/Warrant Officer

I certify that I am currently serving as a municipal judge, city prosecutor, or court support personnel in the State of Texas. I understand that I will be responsible for making and paying for my own hotel reservation. Payment is required for this program; payment is due with this form. The registration fee is refundable if the Center is notified of cancellation in writing 10 days prior to the seminar. Participant Signature Date

PAYMENT INFORMATION: ($2.00 is added for each registration with credit card payment.)

$50 Check Enclosed (Make checks payable to TMCEC.) $52 Credit Card (Complete the following.)

For participants who do not work in a municipal court: $100 Check Enclosed (Make checks payable to TMCEC.)

$102 Credit Card (Complete the following.) Credit Card Registration: (Please indicate clearly if combining registration forms with a single payment.)

Credit card type: Credit Card Number Expiration Date Verification Number (found on back of card)

MasterCard

Visa Name as it appears on card (print clearly): Authorized Signature

Please return completed form with payment to TMCEC at 1609 Shoal Creek Boulevard, Suite 302, Austin, TX 78701. Fax registration forms with credit card information to 512.435.6118.


CLERK’S CORNER

The Winds of Changeby Margaret Robbins, Program Director, TMCEC

The 80th Legislature is meeting and thecourts know what this means—change. Preparation takes planning.Planning, however, is not all of it. Thecourt must also be a learningorganization. So, what are theingredients for being successful? Sincethis is just a short column, not allavenues can be explored; but someideas are discussed here.

Let us first look at what it means to bea learning organization. This dependson the vision of the court. A learningorganization usually has a commitmentto creating a future in which it iscontinually improving. Its membersare encouraged to expand theirpersonal capacity. In other words, theorganization is on a path of continualchange and development.

Judges, clerks, court administrators,and other city personnel can worktogether to create the vision of thecourt and then develop a plan for thefuture. The plan must include how toanticipate change, how to react tochange, and how to manage change.Learning and change are inextricablyintertwined.

Many people do not like change. Butchange can be exciting—it movespeople from “hum-drum” to newpaths. Think about it like taking avacation to a new place. If a persontakes the same vacation several times,it becomes a known path. In a similarmanner, the Legislature changes thepath of the court. The court over thenext year learns this path like theperson who takes the same vacationmultiple times. The key to learning thisnew path is planning, training, learning,

implementing, and reviewing.

Likewise, the court should have a planand should have considered pastexperiences with legislative changesand the problems involved withmaking the changes. It helps if thecourt has a picture of its currentprocesses, such as flowcharts.[TMCEC has a flowchart of theoverall procedures. Call 800/252-3718 and ask for the “ProceduresFlowchart” to have it mailed to thecourt.] Before a court can makechanges, it must know what its currentprocedures and processes are in orderto know what changes to make andhow to implement the cominglegislative changes.

The following are some planningissues that courts might want toconsider:

Forms

• Do not order new forms untilafter the legislative session is overso that all changes can be made;this includes citations, minimumfine schedules, driving safetycourse forms, deferreddisposition forms, receipt forms,any forms given out to the public,and any other forms the courtneeds to review.

• Determine the costs and howlong it takes to print new forms.

• Determine who is in charge ofreviewing forms and coordinatingchanges.

• Determine deadlines forsubmitting changes to forms and

getting forms to printers.

Changes to Case ManagementSoftware

• Talk with software vendors to getan estimate of how long it willtake for legislative changes to bereleased to the court.

• Determine who is responsible orliable for changes that areincorrect.

• Determine if the court has thecapability of making any of thechanges itself.

Training Staff

• Determine if money is available inthe budget to attend TMCECLegislative Updates for bothjudges and clerks.

• Determine who is responsible fortraining court staff.

• Determine who is responsible fordisseminating information to thepolice department, codeenforcement officials, animalcontrol officers, prosecutor, othercity staff, and the city council.

Work with the Judge

• Get approval from the judge forchanges in court processes.

• Coordinate changes with thejudge.

• Review changes with the judge.

Audit

• Review changes to determinecompliance with new legislation.

• Review changes to determine ifprocesses are on budget and


timetables.

• Identify any alternative means ofprocessing changes.

• Identify coordination issues, i.e.,with police department, codeenforcement, etc.

Courts do not have a choice when itcomes to change—the TexasLegislature meets every two years. Tosucceed at implementing change,courts must plan their change efforts.

For the courts, this includesunderstanding how the law works.This means that anyone involved inlegislative change should be familiarwith the Code Construction Actcodified in Chapter 311 of theGovernment Code. Informationabout the Code Construction Act isfound in Level II study guides, Code ofCriminal Procedure and Penal Code, andLegal Research. If the court does nothave a copy of these two guides, they

can be found on TMCEC’s website:www.tmcec.com under Publications.

Planning means being prepared for thefuture. Although the courts may notyet know what changes the Legislaturewill make, they know there will bechanges. Knowing this gives courtstime to start planning now how toanticipate, react, and manage thechange.

Public Safety Training and Red LightCamera Enforcement

by Meichihko Proctor, TMCEC Program Attorney & Deputy Counsel

Red light camerasystems are designedto decrease thenumber and severityof crashes andincrease pedestriansafety by controllingthe running of redlights. Cities across the nation andTexas are choosing to use this methodof traffic enforcement.

How do they work? Generally, acamera photographs vehicles thatenter the intersection after the light hasturned red. It usually does not photo-graph vehicles that enter on yellowand are in the intersection when thelight changes to red. The technology isintended to catch vehicles driven bymotorists who intentionally enter theintersection after the signal has turnedred.

Typically, the camera system takes aseries of images. The first shows thevehicle before the white stop line withthe red light illuminated. The seconddisplays the license plate of the vehiclepast the white stop line. The thirdshows the vehicle in the middle of the

of bid language that could be incor-porated into your city’s Request forProposals.

Public Safety Training Requirement

At the direction of, and under thesupervision of an authorized City PublicInformation Officer, the Vendor willcoordinate the provision of public safetytraining to include the creation of a publicsafety logo, the production of proposedmaterials using the logo such as coloringbooks, key chains, bumper stickers (to bespecified by the Vendor). The public safetytraining program will be consistent throughthe contract period. The Vendor shalldescribe how its proposed public trainingprogram will enhance public support forprogram operations.

This article is intended to serve as aninformational guide; however, it iswritten with the intention thatTMCEC is not engaged in renderinglegal or other professional advice.Cities should consult with their cityattorney regarding legal advice on thissubject matter and for legal draftingadvice regarding Requests for Propos-als.

intersection with the red light illumi-nated. Time, date, and duration of theyellow and red lights are also re-corded. Some systems do not takephotographs of the vehicle operatorand some systems do. Violations areissued by the local police departmentand sent to the registered owner ofthe vehicle within a number ofbusiness days after the violation.

Along with the red light cameraenforcement systems, some cities haverequired bidders to incorporate anelement of public safety training intoproposals for red light camera en-forcement. For example, some cities,in partnership with service providers,have designed and produced speciallogos for the program, such as “Safeon Red,” or “Red for a Reason.” Thelogo is then placed on special bumperstickers and key chains and featured incoloring books that are available tothe public. This public safety trainingrequirement could be inserted into acity’s Request for Proposals under theheading “Public Relations SupportServices,” or “Public Safety TrainingRequirement.” Below is an example


FOR COURT INTERPRETERS

80.100. Code of Ethics andProfessional Responsibility. (Effective April 1, 2003, 28 TexReg2742)

(a) Preamble. Many persons who comebefore the courts are non- or limited-English speakers. The function ofcourt interpreters and translators is toremove the language barrier to theextent possible, so that such persons’access to justice is the same as that ofsimilarly situated English speakers forwhom no such barrier exists. Thedegree of trust that is placed in courtinterpreters and the magnitude of theirresponsibility necessitate high, uniformethical standards that will both guideand protect court interpreters in thecourse of their duties as well as upholdthe standards of the profession as awhole. Interpreters are highly skilledprofessionals who fulfill an essentialrole in the administration of justice.

(b) Applicability. This code shall guideand be binding upon all persons,agencies and organizations whoadminister, supervise use, or deliverinterpreting services to the judiciary.This code is therefore intended not onlyto set forth fundamental ethicalprecepts for court interpreters tofollow, but also to encourage them todevelop their own, well-informedethical judgment.

(c) CANON 1: ACCURACY ANDCOMPLETENESS. Interpretersshall render a complete and accurateinterpretation or sight translation,without altering, omitting, or addinganything to what is stated or written,and without explanation. The register,style and tone of the source languageshould be conserved. Whileinterpreting or translating, courtinterpreters are to use the samegrammatical person as the speaker.

Guessing should be avoided. Interpreter errors should be correctedfor the record as soon as possible.

(d) CANON 2:REPRESENTATION OFQUALIFICATIONS. Interpretersshall accurately and completelyrepresent their certifications,accreditations, training, education, andpertinent experience. Court interpretersshall bring to the judge’s attention anycircumstances or conditions thatimpede full compliance with any canonof this code, including, but not limitedto: interpreter fatigue, inability to hear,or inadequate knowledge of specializedterminology, and must declineassignments under conditions that makesuch compliance unattainable. Acceptance of a case by an interpreterconveys linguistic competency in legalsettings.

(e) CANON 3: IMPARTIALITYAND AVOIDANCE OFCONFLICTS OF INTEREST. Interpreters shall be impartial andunbiased and shall refrain from conductthat may give an appearance of bias. Interpreters shall immediately discloseto the Court and all parties any real,potential or perceived conflicts ofinterest. Interpreters shall abstain fromcomment on cases in which they serve. An interpreter who is also an attorneyshould not serve in both capacities inthe same matter, unless agreed to by thejudge and all parties.

(f) CANON 4: PROFESSIONALDEMEANOR. Interpreters shallconduct themselves in a mannerconsistent with the dignity of the courtand shall be as unobtrusive as possible.

(g) CANON 5:CONFIDENTIALITY. Interpretersshall not disclose privileged or

confidential communications orinformation acquired in the course ofinterpreting or preparing forinterpretation, unless authorized by theCourt or by law.

(h) CANON 6: SCOPE OFPRACTICE. Interpreters shall limitthemselves to interpreting or translating,and shall not give legal advice, expresspersonal opinions to individuals forwhom they are interpreting, or engagein any other activities which may beconstrued to constitute a service otherthan interpreting or translating whileserving as an interpreter. An interpretermay convey legal advice including theexplanation of forms and/or servicesto a person only while an attorney isgiving it.

(i) CANON 7: ASSESSING ANDREPORTING IMPEDIMENTSTO PERFORMANCE. Interpretersshall assess at all times their ability todeliver their services. When interpretershave any reservation about their abilityto satisfy an assignment competently,they shall immediately convey thatreservation to the judge.

(j) CANON 8: DUTY TOREPORT ETHICALVIOLATIONS. Interpreters shallreport to the judge any effort toinfluence or impede the performanceof their duty, or their compliance withany legal requirement, any provision ofthis code, or any other official policygoverning court interpreting. Aninterpreter having knowledge thatanother interpreter has committed aviolation of any provision of this codeshall inform the judge and/or theappropriate licensing authority.(k) CANON 9: PROFESSIONALDEVELOPMENT. Interpreters shall

Code of Ethics and Professional Responsibility

Interpreter’s Code continued on page 33


COURT SECURITY

Assessing Threats in Our Courtsby Lois Wright, TMCEC Program Attorney

Courtroom violence has undoubtedlyincreased in recent years, along withschool shootings, sectarian violence,random acts of terrorism, andcountless other classifications ofcrimes that accompany a rapidlyindustrializing planet.

Informal research by the NationalSheriff ’s Association suggests thatsince 1970, eight state or local judges,three local prosecutors, 42 courtparticipants, and at least five lawenforcement officers have been killedin and around local courthouses.1 Andthose numbers only represent a bestestimation, since no uniform systemfor tracking judicial violence existsamong the states.

Court rulings even in seemingly simplecases can trigger feelings of anger andrevenge that manifest as threats orviolence against contributors to thejustice system. Threat management,while more discreet than itsquantifiable reactive counterpart, is ahighly effective form of proactivecourt protection. Someone on everycourt security team should be assignedto quickly assess threats, accuratelydetermine how to protect judgesagainst various levels of threats, andcollect and share intelligence on threatsagainst judges and court personnel.

The Bureau of Justice Assistancerecently published a bulletin aboutthreat management processes tofacilitate the reduction of andappropriate reaction to violencecommitted and attempted against thejudiciary.2 It is critical that every citydesignate a threat manager to handleall threats before the court. The threatmanager or contract personnel should

train all staff on behaviors constitutinginappropriate communication orcontact and how to report them.These initial reports will be used toglean facts about a situation anddetermine the appropriate response.

Reports should be accepted from alllevels of court personnel—fromjudges and clerks to mail handlers andparking lot attendants—because thepeople with the most public exposureare the most likely to see, hear, orreceive inappropriate communicationsor contact.

Tracking systems, whether highlysophisticated computer databases orsimple index card systems, should beeasily accessible by other agencieswhen cases span multiple levels orgeographical jurisdictions of the court.Additionally, inappropriatecommunication or contact (IC&C)

reports should maintain, at aminimum, the following information:• A case summary along with

information regarding the casespecifics;

• The manner in which the IC&Cwas delivered;

• The context of the situation andany exact quotes used;

• Demographics of the suspect, ifknown;

• Target information; and• Initial perceptions regarding a

possible motive.

Based on the IC&C data andsubsequent research, the threatmanager should provide an assessmentof the risk and design a suitableprotective response. A subject can beeither a “hunter”—someone whoattacks without having made threats or

Figure 1: Threat Management Strategies

From Frederick Calhoun & Stephen Weston, Protecting Judicial Officials:Implementing an Effective Threat Management Process 5.

Copyright 2006, Bureau of Justice Assistance.


a “howler”—someone who makesthreats but never attacks. In order topredict the subject’s behavior, thethreat manager should consider theperson’s background, the level ofdespair they may be facing, theperson’s proclivity towards violence,and previous behavior that was relatedto the attack.

When the time comes to issue aresponse, it will vary widely,depending on the facts of the case.Figure 1 presents an example of theintrinsic fluidity and range ofresponses involved in threatmanagement.

Targets of threats related to specificcourt cases are often already aware orsuspicious of dangerous suspects.Other bystanders or court employeesmay have their own impressionsabout certain persons as well. Asecurity briefing to the target andother people who may be affectedwill help amalgamate the informationthat is available and quell extraneousrumors or suspicions. Frequentupdates and informationdissemination will put potential targetsat ease and dissipate fear throughoutthe court.

Remember that there is rarely closurein a threat management case. Arrest,

conviction, the passage of time: noneof these factors ensure that the subjectwill never be heard from again. Threatmanagement is more closely related toa behavioral science than a legalprocess, but with due consideration, itoffers a great return to our justicesystem.________________

1 Knowledge and Info. Services Off. &George Perkins, Protecting Court Staff:Recognizing Judicial Security Needs 2-3 (Natl.Ctr. for St. Courts 2006).

2 Frederick Calhoun & Stephen Weston,Protecting Judicial Officials: Implementing anEffective Threat Management Process 1-7(Bureau of Just. Assistance 2006).

Court InterpretersOn May 23, 2007 TMCEC will offer eight hours of continuing education for Licensed Court Interpreters at the OmniWestside Hotel in Houston. Topics to be discussed include: Laws and Regulations Affecting Court Interpreters, Interpreter’s Ethics,Courtroom Terminology, Trial Courts Procedures, Jurisdiction, and Case Law Update on Interpreter Issues. The registration fee is $50.The program is designed for interpreters working on a full-time basis in municipal courts. The school is designed toprovide eight hours of continuing education for court interpreters licensed by theTexas Department of Licensing andRegulation (TDLR), including two hours of ethics. It is not a preparation course for the licensing exam. To register, pleaseuse the registration form found on page 27 in this journal.

TMCEC has set up a web page for municipal court interpreters: www.tmcec.com/Interpreters.html. There is also alistserv for municipal court interpreters. To join, email your name, email address, and court name to [email protected] the subject line, insert “Request to Join Court Interpreter Listserv.” Questions about the program can be addressed toHope Lochridge or Lois Wright at TMCEC (800/252-3718).

continually improve their skills andknowledge and advance the professionthrough activities such as professionaltraining and education, and interactionwith colleagues and specialists in relatedfields. Interpreters should keepinformed of all statutes, rules of courtsand policies of the judicial system thatrelate to the performance of theirprofessional duties.

Interpreter’s Code continued from page 31

Tired of Sharing?The Recorder is sent at no charge to municipal judges and courtsupport personnel who attend TMCEC programs. If members ofyour local law enforcememnt or members of other levels of thejudiciary would like to subscribe, the cost is $50 for four issueseach year. To subscribe, email [email protected]. We then willsend an invoice for payment.


Municipal Traffic Safety Initiative:News You Can Use

Costs and Benefits of ImprovingTraffic Safety in Your Community

by Paul Isham, Attorney-at-Law, Lago Vista, and Noël Wells, TMCEC Administrative Assistant

Although statistics reported by the National HighwayTraffic Safety Administration (NHTSA) indicate that trafficsafety continues to improve within the country, trafficcollision-related injuries and fatalities remain at a staggeringhigh. Every year in America, traffic collisions areresponsible for approximately four million emergencyroom visits, half a million hospitalizations, and 40,000American deaths. Communities manage the costs of trafficcrashes, including the economic and emotional impact ontheir citizens. Fortunately, every city has the opportunity totake steps to improve traffic safety within their community.

Research and statistics from NHTSAshow important trends that provide aframework for evaluating possible tar-gets for safety improvements across thecountry. In general, the majority (64%)of people killed or injured in crasheswere drivers (70%), males have a higherinjury rate than females, and 45% oftraffic fatalities are alcohol-related. InTexas, 3,504 people died in 2005, down 2.2% from theprevious year. However, Texas remains second toCalifornia in the number of traffic fatalities suffered peryear, particularly among younger citizens. The impact hitshard in Texas cities since over 58% of all fatalities occurredon streets and roadways commonly considered to be underthe control of municipalities or other local entities. Thistakes a tremendous economic toll; in Texas, motor vehiclecrashes resulted in $19.8 billion in statewide costs in 2000,again, second to California.

Death and serious injury from traffic crashes affecteveryone and require everyone to be accountable. Mostmotor vehicle injuries are no accident. Like most medicalconditions, these injuries are predictable and can beprevented or controlled. Studies have proven that trafficlaws combined with high visibility law enforcement doesactually save lives. Even with statistics that show thatwearing a safety belt can significantly reduce the risk ofdeath and serious injury in motor vehicle crashes, 18% of

passenger vehicle occupants are still not buckling up. Youngmales living in rural areas and drive pick-up trucks areespecially inclined to drive without a seatbelt and are also athigher risk of being involved in fatal crashes. Targeted,statewide ad campaigns such as “Click it or Ticket” as wellas increased traffic enforcement of seat belt laws serve ascontinuous reminders to the public of the necessity tobuckle up. These measures attempt to combat carelessbehavior, and more than ever, people are using seat belts.Continued campaigning will only help to reinforce thesefundamental safety precautions.

Traffic law enforcement is one of themost important factors in the crusadeto increase safety on public streetsand roadways. Enforcement can alsobe an effective tool for reducingcriminal activity. The “LookingBeyond the Ticket” traffic programimplemented in Peoria, Illinoisincreased criminal arrests by 34%,

decreased traffic crashes by 12%, and increased trafficticket issues by 16%, simply through a proactive effort totreat every traffic stop as a unique opportunity to improvetraffic safety. A similar approach in Albuquerque, NewMexico, called the “Safe Streets” program helped toreduce crimes against people and property by five percent,traffic crashes by 12 percent, and traffic fatalities by nearlyone-third by focusing on high crime and high collisionareas within the city. Examples like these show that athoughtful approach to traffic enforcement and a proactivemindset create measurable and sustainable results thatbenefit the entire community.

Improving traffic safety is not simply a matter for policedepartments to handle. It requires the involvement of yourcity governing body. Administrative staff, municipal judges,prosecutors, and the community must make a collaborativeeffort to help manage the public’s negative perception oftraffic enforcement. Community opinions can be changedthrough education, public relations, and media coverage.

The impact hits hard inTexas cities since over 58%of all fatalities occurred onstreets and roadwayscommonly considered to beunder the control ofmunicipalities or other localentities.


Educating and involving your community are essential elements of a successful traffic enforcement program.Furthermore, your community can receive the benefits of improved traffic enforcement without requiring costlyresources.

Numerous resources are available to assist cities in creating and managing traffic safety programs in their communities. TheNHTSA website (www.nhtsa.dot.gov) holds valuable statistics and trends, and the Texas Department of Transportation’ssite (www.dot.state.tx.us) contains information for maintaining a “safe community.” The Governor’s Highway SafetyAssociation’s site (www.ghsa.org) is also an excellent resource for initiating a traffic enforcement program. With continuedpersistence and the initiative of every municipality, implementing a strong traffic law enforcement program will preventand reduce motor vehicle injuries and deaths, reduce crime rates, and become an integral part of the community policingpolicy.

TMCEC encourages court personnel to log onto the TMCEC blog for traffic safety issues and share effective solutions intheir communities on these important issues. Go to: http://municipaltrafficsafetyinitiative.blogspot.com.

__________

Noël Wells has worked at TMCEC since August 2006 as the Administrative Assistant. She is a film and liberal arts studentat the University of Texas at Austin. This article was developed in collaboration with Paul Isham, an attorney in LagoVista, who worked as the TMCEC Contract Attorney during the Summer 2006.

Trend of Texas Fatalities 2001-2005

2001 2002 2003 2004 2005

Total Fatalities 3,736 3,823 3,821 3,699 3,504

Alcohol-Related 1,807 1,810 1,771 1,704 1,569

Speeding Involved Crashes 1,423 1,580 1,560 1,466 1,426

Alcohol-Related Fatalities 2005

Fatalities Percentage2005 Alcohol-Related Alcohol-Related where Highest where Highest

(Number) (%) BAC in Crash was .08+ BAC in Crash was .08+

Texas 1,569 45% 1,371 39%

US 16,885 39% 14,539 33%


TEXAS MUNICIPAL COURTSEDUCATION CENTER

1609 SHOAL CREEK BLVD., SUITE 302AUSTIN, TX 78701

www.tmcec.com

TMCEC MISSIONSTATEMENT

To provide high quality judicialeducation, technical assistanceand the necessary resource ma-terial to assist municipal courtjudges, court support personneland prosecutors in obtaining andmaintaining professional compe-tence.

Change Service Requested

Presorted StandardU.S. Postage

PAIDAustin, Texas

Permit No. 114

EthicsUpdate

Reprinted with permissionfrom the 2006 AnnualReport of the StateCommission on JudicialConduct.

Bail Bonds for All, Reprise Citations - Part I

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