federal and state case law update recorder/2004/nl_0104.pdf · persons of the same sex from...

©2003 Texas Municipal Courts Education Center, Austin. Funded by a grant from the Court of Criminal Appeals.

Volume 13 JANUARY 2004 No. 3

Federal and State Case Law UpdateBy Ryan Kellus Turner, Program Attorney & Deputy Counsel, TMCEC

Case Law Update continued on page 5

AG Opinions continued on page 10

Attorney GeneralOpinion Update

By Ryan Kellus Turner, Program Attorney & Deputy Counsel, TMCEC

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

Articles:Attorney General Opinion Updateby Ryan Kellus Turner ........................ 1

Ethics Update ....................................... 12

Federal and State Case Law Updateby Ryan Kellus Turner ........................ 1

Columns:Around the State ................................. 2Clerk’s Corner .................................... 23Collections Corner ............................ 24Court Security .................................... 25From the General Counsel ................. 3Resources for Your Court ................ 17

Except where otherwise noted, thefollowing summarize opinions handeddown October 1, 2002 through Septem-ber 31, 2003.

I. United States Supreme Court

A. Search and Seizure

Kaupp v. Texas, 23 S.Ct.1843 (2003)

A confession obtained by exploitationof an illegal arrest may not be usedagainst a criminal defendant. The Courtheld that Kaupp had not accompaniedofficers voluntarily. Taking into accountthe handcuffing, leaving him undressedin cold weather, and the admitted lack ofprobable cause, the Court held thatKaupp had been illegally placed underarrest at his home, and that the confes-sion should have been suppressed at

trial. The Court reiterated that thestandard for whether an individual isunder arrest is whether the police actionswould “have communicated to a reason-able person that he was not at liberty toignore the police presence and go abouthis business.” The Supreme Courtremanded Kaupp’s case for proceedingsconsistent with the opinion.

B. 14th Amendment: Equal Protection

Lawrence v. State, 123 S.Ct. 2472(2003)

Section 21.06 of the Texas Penal Code, aClass C misdemeanor, prohibiting twopersons of the same sex from engagingin homosexual conduct violates the DueProcess Clause of the FourteenthAmendment. In reversing the ruling of

the Court of Appeals for the TexasFourteenth District, the Court alsooverturned its previous decision in Bowersv. Hardwick (upholding the constitutional-ity of criminal statutes prohibitingconsensual sodomy).

C. First Amendment: Freedom ofSpeech

Virginia v. Black, 123 S.Ct. 1536 (2003)

A state may ban cross burning carriedout with the “intent to intimidate”without violating the First Amendment.However, in this particular case, the actof cross burning itself was held to beinsufficient evidence to infer “intent tointimidate,” thus the Court struck downthe Virginia statute’s prima facie provision.

Except where otherwise noted, thefollowing summarize opinions handeddown October 1, 2002 throughSeptember 31, 2003.JC-0544 (8/4/2002)Authority of a general-lawmunicipality to assign to a “cityadministrator” duties reserved bystatute to the mayor or city managerGeneral-law cities are creatures ofstatute and have only those powers

expressly granted by statute or that arenecessarily implied. The legislature hasexpressly designated the mayor of ageneral-law city as the budget officer ofa municipality, unless the municipalityhas adopted the city manager form ofgovernment, and has assigned specificduties by statute to the mayor. The citycouncil has no authority to reassign themayor’s statutory duties to another

Municipal Court Recorder January 2004

Texas Municipal CourtsEducation Center

1609 Shoal Creek Boulevard, Suite 302Austin, Texas 78701

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

Web site: www.tmcec.com

FY04TMCA Officers

President: Sharon Hatten, MidlandPresident-Elect: Dan Francis, Robinson1st V.P.: Edwin L. Presley, Benbrook2nd V.P.: Daniel J. Simms, HoustonSecretary: Luane Turvey, WebsterTreasurer: Robert Richter, Missouri CityPast-President: Joe Pirtle, Seabrook

Directors

Jan Matthews, Lubbock . Ninfa Mares,Fort Worth . Vicki Gerhardt, New London. Robin Smith, Midland . David Perkins,New Braunfels . Miles Whittington,Kemah . George Bill Robinson, Yorktown. Robin Ramsay, Denton . Robert Barfield,Pasadena . Walter Dick Kettler, BeverlyHills

Staff

• Hope Lochridge, Executive Director• W. Clay Abbott, General Counsel• Ryan Kellus Turner, Program Attorney &

Deputy Counsel• Margaret Robbins, Program Director• Jo Dale Bearden, Program Coordinator• Margaret Danforth, Admin. Director• Patricia Russo, Program Assistant II• Rey Guzman, Multimedia Specialist• Beatrice Flores, Registration Coordinator• Lidia Ball, Research Assistant• Courtney Barajas, Publications Coordi-

nator/Admin. Assistant

Published by the Texas Municipal CourtsEducation Center through a grant from theTexas Court of Criminal Appeals. Sub-scriptions are free to all municipal judges,clerks, prosecutors, and support personnelemployed by the municipal court. Othersmay purchase an annual subscription for$50.

Articles and items of interest not otherwisecopyrighted may be reprinted with attribu-tion as follows: “Reprinted from theMunicipal Court Recorder with permissionof the Texas Municipal Courts EducationCenter.”

The views expressed are solely those of theauthors and are not those of the TMCABoard of Directors or the staff of TMCEC.

AROUND THE STATE

Willing Named SCJC Executive DirectorThe members of the State Commission on Judicial Conduct announce theappointment of Seana Beckerman Willing to the position of Executive Director.Ms. Willing has been employed as an attorney for the Commission sinceSeptember 1999. In May 2001, Ms. Willing began serving as the agency’sGeneral Counsel.

Ms. Willing received her bachelor’s degree in Economics from Holy CrossCollege (Worchester, Massachusetts) in 1985, and her law degree from St. Mary’sUniversity School of Law (San Antonio) in 1993. Ms. Willing has been licensedto practice law in Texas since November 1993, and is also licensed to practicebefore the United States District Court for the Western District of Texas andthe United States Supreme Court. Prior to coming to the Commission, Ms.Willing served as an Assistant General Counsel for the San Antonio RegionalOffice of the State Bar of Texas, where she prosecuted disciplinary actionsagainst attorneys, and was in private practice with the law firm of B. ThomasHallstead, P.C., in San Antonio, where she practiced primarily in the area ofbusiness litigation.

Ms. Willing has served as Interim Executive Director for the Commission sinceJune 2003. She has served on the TMCEC faculty since 1999 and TMCECcongratulates her on her appointment.

Evidence SeminarTMCEC is offering a Special Topic Seminar on Evidence on January 15-16, 2004at the Omni Park West in Dallas. The program will cover applying the TexasRules of Evidence to issues encountered in municipal court. The program wasoffered last year and highly rated by participants who made the followingcomments:

“One of the best seminars; very informative.”

“This is the best course that has been offered in 10 years. Thanks! Please giveus more seminars like this — one subject broken down and digested.”

Judges who attended last year are not eligible to attend this year’s program. Theprogram is approved for mandatory judicial education for municipal judges.Judges may attend this program and also attend a traditional 12-hour TMCECregional conference, but will be responsible for the expense of one of the twoprograms. To register, use the form on page 27 of this newsletter. Although theregistration deadline has passed, TMCEC is holding a number of rooms for lateregistrants.

January 2004 Municipal Court Recorder

FROM THE GENERAL COUNSEL W. Clay Abbott

My father was fond of telling me thatshould I fail in every otherregardand my more public blundersare a matter of family loreat least Iwould succeed in being a bad exampleand object lesson for my youngersiblings. In this issue, a number ofsanctions from the State Commissionon Judicial Conduct are summarized.In discussing three of them, I do notattempt to add to the sting of thesanctions given these judges, but, likemy father, use them as instructionalbad examples. Three different issuesare raised by these sanctions:Demeanor, Diligence, andCompetence.

Demeanor: No Loud TalkAllowedIn December of 2002, theCommission filed a “Notice ofFormal Proceedings against a BrazoriaCounty Justice of the Peace. Thatnoticeand subsequent findings offactcentered on obscene andracially offensive language used by thecourt in magistrate hearings at the jail.Canon 3B(4) of the Texas Code ofJudicial Conduct requires that a judge“…be patient, dignified, andcourteous to litigants… .” Canons3B(5) & (6) prohibit the judge fromacting on or manifesting bias orprejudice. In the notice, the examinerscharge that, “The use of suchlanguage promotes disorder anddetracts from the proper decorum ajudge must maintain.” Further, theexaminers stated that the raciallyoffensive language used by the judgedisplayed “a fundamental lack of thedignity and courtesy every judge mustaccord to every litigant.” They alsoconcluded the judge’s language, “…

blatantly manifested a racialprejudice… .”

Defendants are routinely convictedand found in contempt in municipalcourt based on the words they use andthe way they use them. Judges mustconform to a higher, not a lowerstandard. There is a particulartemptation to imitate the demeanorand style of those with whom weconverse. The judge should neverdrop to the level of those who havetemporarilyor morepermanentlymade jails and prisonstheir homes. Rather, through thedisplay of judicial decorum, themagistrate should earn the respect ofeven the chronically disrespectful. Thecourt should require decorum even injail, but never by being the biggestthug.

This topic is not a new one in thepages of this publication. But, a littlereminder never does us any harm.Which would also explain my Dad’scontinued effort to reform me aftermost folks would have despaired.

DiligenceScarcely a month goes by that a clerkfrom somewhere in Texas doesn’tinform me that the procedure for jurytrial request or some other logisticallychallenging process is handled byplacing the case in a file, basket, ordrawer where it waits until the case isold enough to dismiss. On August 15,2003, the Commission issued a PublicAdmonition to a Dallas County JP forthis exact technique.

Canon 2A of the Texas Code ofJudicial Conduct requires a judge tocomply with the law. Canon 3B(9)requires a judge to, “dispose of all

judicial matters promptly, efficiently,and fairly.” The JP’s PublicAdmonishment sets out severalinstances where civil cases simplyfell through the cracks. The judge’sexplanation that the chief clerk hadquit leaving a “big mess” seemed tomake no impact on theCommission. The Commission alsoadmonished the judge for failing tofile court costs and activity reports.Failing to promptly issue receiptswas also mentioned.

One look at my desk will properlyexclude me from the ranks of theperpetually organized. Logisticalcompetence is perhaps an innategift. Yet, the message of theCommission is unmistakable, thejudge has an ethical duty to see thatthe court is run according to the lawin an efficient manner. There isoften a temptation to put theresponsibility of efficiency and legalcompliance on the shoulders of ourcourt’s very competent supportstaff. This Public Admonishment isa clear reminder that the efficientand legal administration remains theethical responsibility of the judge.

Just as an improper judicialdemeanor ruins public confidence,so too does an obviously poorly runcourt. The public holds our publicinstitutionsperhaps courts inparticularto a high standard ofefficiency. Prosecutors and policealso expect a lot from the courts.Their ability to enforce the law andto do justice depends just as muchon the court’s prompt and efficientdischarge of cases as it does on thecourt’s fairness and impartiality.


Municipal courts impose personalresponsibility on defendants beforecourt as the primary function of thecourt. To maintain any credibility, thecourt cannot fail to meet its own legalresponsibilities.

Competence: Getting aPlea, Unauthorized Fees,and Bond/SpecialExpense/FineA justice of the peace, also serving asa municipal judge, received anAmended Public Admonishment bythe Commission on Judicial Conducton October 28, 2003 for a series ofprocedural gaffs far too common intoo many municipal courts. TheAdmonishment stated that theprocedural errors “displayed a failureto maintain competence in the law, inviolation of Canon 3B(2).”

Two of the three complainants weredefendants in criminal cases. In bothof those incidents, the Commissiontook umbrage at the judge’s failure toobtain a voluntary plea of guilty or nocontest before assessing “dismissalfees” or placing the defendant ondeferred disposition. Failure toproperly take a voluntary plea hasbeen the factor in a great many recentsanctions by the Commission. Thenecessity of taking and documenting aplea, and of entering a judgmentshould not be underemphasized. Somany ethical breeches start with thisearly procedural failure.The Commission also expressedparticular ire that the judge advisedthe defendant not to contest thematter. In any level of court, thedefendant’s plea must be voluntarilygiven, that is free of influence of thecourt, to be valid. To comment onthe expensive car driven by thedefendant and to state that thedefendant “did not need to contestthe matter,” were found by theCommission to violate Canon 3B(4).The right to a fair and impartial judge

is totally inconsistent with a judge thatsuggests or favors one plea overanother.In one of the three instances, the judgecharged an administrative fee fordismissals of a number of complaintsafter the defendant vaccinated thedogs, she was charged with notvaccinating. No statutory authorityexists to charge such a fee. Article45.203(d), Code of CriminalProcedure, specifically prohibits amunicipality from creating cost byordinance. Often, judges and clerks askme “where it says” that judges cannotmake up and charge fees as they wish.I can’t point you to that statute. I alsocan’t find a statute that says themunicipal judge cannot move the starsin the firmament. But they can’t. (Thismay come as a shock to some.) Thecourt may only impose fines in therange provided by statute or ordinance,and may only impose costs or feesprovided by statute. Especiallyproblematic is requiring defendants topay fees when they have not plead to,nor been found guilty of offenses.(There are some statutorily providedinstances involving registration andinspection offenses.) As has beennoted before in my column, manycourts improperly assess theseunauthorized fees, expenses, orcharges. The risk now includessanction by the Commission, as well aslawsuits and audits by the TexasComptroller.

Finally, the Commission specificallyadmonished the judge for failure tounderstand the procedural workings ofdeferred disposition under Article45.051, Code of Criminal Procedure.In this instance, the judge chargedboth a fine and a special expense fee.The Commission specifically found:

According to Art. 45.051(c) of theCode of Criminal Procedure, acourt can collect a “specialexpense” in lieu of a fine onlyafter a deferral period has been

served, and after the defendanthas complied with any otherrequirements imposed at the timeof the finding of guilt.

A special expense is assessed onlyupon dismissal. A fine is assessed onlyupon revocation and imposition of ajudgment of guilt. During the deferredperiod the court may order thedefendant to “post a bond in theamount of the fine assessed to securepayment of the fine,” pursuant toArticle 45.051 (b)(1), Code ofCriminal Procedure. The defendantcould agree in the bond to have thecourt use the bond for payment of thespecial expense assessed on dismissal.

Briefly restated: 1) the defendant paysa bond, which remains a bond duringthe deferred period; 2) if thedefendant fails to abide by the termsof the deferred, the defendant isrevoked, assessed a fine, and the bondforfeited to pay the fine; or 3) thedefendant completes the deferredterms, the case is dismissed, a specialexpense is assessed, the bond is usedto pay the special expense byagreement of the defendant.

In no instance are a fine and specialexpense fee both permitted under thelaw. For the wrongful application ofthese provisions, the judge was foundto have violated Canon 3B(2). ThatCanon requires the judge maintainprofessional competence in the law. Itis my hope that this publication helpsjudges, prosecutors, and support staffremain faithful to the law andmaintain professional competence inthe law.B

Revised EPOTMCEC has revised its EmergencyProtection Order. The new form isavailable on theTMCEC web site[www.tmcec.com ] orby calling the Centerfor a copy. Copies willbe mailed to all courtsin late January.


II. Texas Court of Criminal Appeals

A. Search and Seizure

1. Reasonable Suspicion to Ap-proach or Knock

State v. Perez, 85 S.W.3d 817(Tex.Crim.App. 2003)

In the case of an encounter, a policeofficer may stop and ask questions of aperson without reasonable suspicion.Here, the officer merely slowed downhis vehicle to get a closer look at thedefendant. This was at most an encoun-ter. When the defendant ran to hisapartment, the officer followed him andknocked on the door. This, too, wassimply an encounter. Reasonablesuspicion was not required for eitherencounter.

2. Offense within Officer’s Presenceor View

State v. Steelman, 93 S.W.3d 102(Tex.Crim.App. 2002)

The odor of burned marijuana emanat-ing from a residence, coupled with ananonymous tip that drug dealing wastaking place at that residence, did notgive police officers probable cause tobelieve that the person who opened thedoor of the residence had committedan offense in the officers’ presence, andthus the officers were not permitted toenter and arrest everyone inside thehome.

3. “The Hot Pursuit Doctrine”

Yeager v. State, 104 S.W.3d 103(Tex.Crim.App. 2003)

Under the “hot pursuit” doctrine, therelevant consideration is whether theinitial pursuit was lawfully initiated onthe ground of suspicion.

4. Search Incident to Arrest

McGee v. State, 105 S.W.3d 609(Tex.Crim.App. 2003)

Appellant argued that the crack cocaineretrieved from between his buttocksduring a visual body cavity inspection

was the product of a warrantless arrestand the fruit of an unconstitutionalsearch. Warrantless arrests are permittedonly when probable cause for the arrestexists and at least one of the statutoryexceptions to the warrant requirement ismet. When coupled with officer’s priorknowledge supplied by informant, theofficer’s observations were sufficient toprovide probable cause for warrantlessarrest of defendant for drug offensecommitted in officer’s presence orwithin his view. The informant hadprovided the officer with a detaileddescription of the appellant, hislocation, his name, and names of hiscompanions. The informant wasconcerned that appellant was sellingcrack cocaine and hiding it between hisbuttocks. Upon arriving at the scene,the officer observed appellant andcompanions, all of whom matchedinformant’s description, with marijuanasmoke in air, and a marijuana cigaretteon ground. The manner in whichofficer conducted a visual body-cavitysearch of defendant’s anal area wasreasonable, even though it may havebeen an uncomfortable experience forthe defendant, and the officer conduct-ing the search never had formal trainingin conducting cavity searches, wheresearch was not violent, and officer hadon-the-job experience while workingwith senior officers.

5. “Suspicious Places”

Dyar v. State, No. 1794-01 (4/23/2003)

Appellant was subject to a warrantlessarrest in a hospital for suspected DWI.Affirming the Third Court of Appealsin Austin, the Court held that the arrestoccurred in a “suspicious place.” TheCourt’s analysis ultimately centered onthe totality of the circumstances in theparticular case. “The determination ofwhether a place is a ‘suspicious place’ isa highly fact-specific analysis… Severaldifferent factors have been used tojustify the determination of a place assuspicious. However, only one factor

Case Law Update continued from page 1 seems to be constant throughout thecase law. The time frame between thecrime and the apprehension of asuspect in a suspicious place is short…The time between the crime and theapprehension of the suspect in asuspicious place is an important factor.”

B. Enhancements

Beal v. State, 91 S.W.3d 794(Tex.Crim.App. 2002)

Overruling Rener v. State, 416 S.W.2d 812(Tex.Crim.App. 1967), the Court heldthat an appealed prior convictionalleged for enhancement purposesbecomes final when the appellate courtissues its mandate affirming theconviction.

C. Waiver of Appeals

Monreal v. State, 99 S.W.3d 615(Tex.Crim.App. 2003)

A valid waiver of appeal, whethernegotiated or non-negotiated, willprevent a defendant from appealingwithout the consent of the trial court.

D. Trial Procedure; ScientificEvidence

Hernandez v. State, No. 2053-01(6/4/2003)

Although appellate courts may takejudicial notice of other appellateopinions concerning a specific scientifictheory or methodology in evaluating atrial judge’s Daubert/Kelly “gatekeeping”decision, judicial notice on appealcannot serve as the sole source ofsupport for a bare trial court recordconcerning scientific reliability.

E. Substantive Law; Theft

Simmons v. State, 109 S.W.3d 469(Tex.Crim.App. 2003)

The face value of a check is presump-tive evidence of its value.

F. Procedural Law; Habeas Corpus

Ex parte Schmidt, 109 S.W.3d 480(Tex.Crim.App. 2003)

Article 11.09 of the Code of CriminalProcedure does not limit the jurisdic-


tion of the county court to issue the writof habeas corpus to cases in which theapplicant is confined.

III. Court of Appeals

A. Class C Misdemeanors

1. “Deferred Adjudication” is Not“Deferred Disposition”

Houston Police Department v.Berkowitz, 95 S.W.3d 457 (Tex.App.-Houston [1 Dist.]2002)

Berkowitz was charged with theft ofproperty with a value of over $500.00and under $1500.00, a Class A misde-meanor. Ultimately, he entered into aplea agreement with prosecutors,pleading no contest in a county criminalcourt at law to the reduced Class Cmisdemeanor of theft of an amount ofless than $50.00. The court placedBerkowitz on deferred adjudication(Article 42.12, C.C.P.) for four monthsand fined him $100.00. In April 2001,Berkowitz was discharged from com-munity supervision and the proceedingsagainst him were dismissed. Subse-quently, Berkowitz filed a petition forexpunction of his arrest records indistrict court. He claimed he wasentitled to expunction of his arrestrecord under Articles 45.051 and 55.01of the Texas Code of Criminal Proce-dure. HPD and the Harris CountyDistrict Attorney’s Office both enteredgeneral denials. The district courtgranted the expunction petition and theState appealed. In denying Berkowitz’sapplication for expunction, the FirstCourt of Appeals explained that he wasnot entitled to expunction of his arrestrecords subsequent to receiving de-ferred adjudication, where defendantpled no contest to a Class C misde-meanor in a county criminal court at lawand pursuant to information. Such anexpunction is only available in Class Cmisdemeanor cases presented before ajustice court or municipal court bycomplaint and even then, only ininstances where defendants receivedeferred disposition. Despite the factthe charge was plead down to a Class C

misdemeanor, deferred adjudication isnot the same as deferred disposition.Accordingly, Berkowitz was not entitledto an expunction.

2. Consequence of Class C TheftConviction

Nelson v. State, No. 07-01-0425-CR(Tex.App.-Amarillo 2003)

Appellant was convicted of capitalmurder and appealed. The SeventhCourt of Appeals held that while theevidence was sufficient to support theconviction, a prospective juror who hadbeen convicted of a Class C misde-meanor theft was absolutely disquali-fied. Accordingly, the seating of thejuror was a reversible error. The casewas reversed and remanded.

B. Municipal Court

1. Ordinances; Constitutionality

Constitutionality of Ordinance;Commerce Clause

Shannon v. State, No 01-02-00400-CR(Tex.App.-Houston [1 Dist.] 2003)

The dormant commerce clause doesnot prohibit the City of Houston frompassing an ordinance requiring trans-porters of non-hazardous waste to paya flat fee to obtain the necessary licensesand permits required to pick up wasteoriginating within the city limits.Appellant was convicted in municipalcourt of failing to obtain a transporterpermit and operating a vehicle trans-porting waste that was not properlydesignated, and the municipal courtassessed the minimum $250 fine oneach charge. Appellant appealed to thecounty criminal court at law, whichaffirmed the municipal court convic-tions. The City of Houston, in an effort“to protect the public sanitary sewersystem from unauthorized wastereleases and to deter the discharge ofwaste into storm sewers, street right-of-way and other unauthorized places,”passed a series of ordinances to regulatethe transportation and treatment ofcertain non-hazardous wastes. Notably,only transporters originating in Hous-

ton are subject to the permit and licensefee imposed by the city ordinance, thusundermining the allegation that such anordinance violates the commerce clause.The First Court of Appeals thus heldthat the fees imposed relating to thetransportation of non-hazardous wasteare not internally inconsistent and beara fair relation to the services providedby the city.

Constitutionality of “Queuing”Ordinance

Guevara v. State, 110 S.W.3d 178(Tex.App.-San Antonio 2003)

The State appealed the judgment of thecounty court reversing defendant’sconviction of San Antonio, Tex., Codeof Ordinances Sec. 22-140(b), andholding that Sec. 22-140(b) was uncon-stitutional. The ordinance in questionprohibits businesses located along theSan Antonio Riverwalk from recklesslyand unlawfully allowing patrons toqueue on or wait for entrance into acafe on the public right-of-way. Defen-dant argued that Sec. 22-140(b) failed todescribe with reasonable certainty whatactions constituted allowing patrons toqueue on the public right-of-way, andthat “to allow” was insufficient toestablish intent for the purpose ofcharging a person with a penal offense.Affirming the decision of the countycourt, the Fourth Court of Appealsruled that Sec. 22-140(b) was unconsti-tutionally vague because it criminalized afailure to act without informing thosesubject to prosecution that they mustperform a duty to avoid punishment.Furthermore, the Court stated that theordinance did not affirmatively imposeon those subject to it the duty to adopta particular system to prevent thequeuing of patrons waiting for tables.Rather, it made an omission, the failureto prevent queuing, a crime merely bystating that the omission was an offense.(Note: The Texas Court of CriminalAppeals granted the State’s petition fordiscretionary review in October 2003.TMCEC will continue to track futuredevelopments in this case.)


2. Chapter 45 Code of CriminalProcedure

Article 45.019(f) - Objections toDefects of Irregularities in Com-plaint

State v. Sanchez, No. 05-02-00717-CR(Tex.App.-Dallas 2003)

Defendant was charged with consumeraffairs violation in the Dallas MunicipalCourt of Record. On the day the casewas set for trial, defendant moved toquash complaint, and the municipalcourt granted the motion. The Stateappealed. The County Criminal Courtof Appeals affirmed. The State ap-pealed. The Court of Appeals, held that:(1) Article 45.019(f) of the Code ofCriminal Procedure providing that adefendant waives the right to object toerror in the charging instrument if noobjection is made before the date onwhich trial commences, allows the judgeto hear the motion to quash the criminalcomplaint on the day the case is sched-uled for trial; and (2) the defendant’smotion to quash criminal complaint wastimely. Three members of the Courtdissented, arguing that in order forobjections to charging instruments to betimely, they must be raised before theday the trial is scheduled to commence,to provide an opportunity or sufficienttime for the prosecution to correct thecharging instrument before the trial isset to commence. (Note: The TexasCourt of Criminal Appeals granted theState’s petition for discretionary reviewin October 2003. TMCEC will continueto track future developments in thiscase.)

3. Appeals; Cities in Two Counties

Schedit v. State, 101 S.W.3d 798(Tex.App.-Amarillo 2003)

Remanding the cause to the RandallCounty Court at Law for furtherproceedings, the Seventh Court ofAppeals held that one appealing from amunicipal court of record must gener-ally appeal to a county criminal court,county criminal court of appeal, or

municipal court of appeal. However, ifthose courts do not exist within thecounty, then the appellate court withjurisdiction over the matter is thecounty court at law. In this specificinstance, since the boundaries of theCity of Amarillo lie within the countiesof both Randall and Potter, the legisla-ture has expressly declared the countycourts at law of both counties as theappellate courts with jurisdiction overan appeal. In other words, the appellantwas entitled to appeal from the AmarilloMunicipal Court of Record to either theCounty Court at Law of RandallCounty or those of Potter County.Accordingly, the Randall County Courtat Law erred in dismissing (for want ofjurisdiction) appellant’s appeal from theAmarillo Municipal Court.

4. Sureties

Senter v. Hudson, 28 S.W.3d 153(Tex.App.-Fort Worth 2000)

Appellant, who was convicted of threetraffic offenses, filed appeal bonds withhis parents as sureties. TheDalworthington Gardens MunicipalCourt of Record rejected the appealbonds because the appellant’s parentswere not attorneys or licensed bail bondsureties. Appellant then filed a petitionfor writ of mandamus. The TarrantCounty Criminal Court denied thepetition. The Second Court of Appealheld that the municipal court erred inholding appellant’s appeal bonds wereinsufficient and the trial court erred bydenying appellant’s petition for writ ofmandamus, because a person not servingas a surety for hire or compensation wasnot disqualified from serving as a surety.

5. Habeas Corpus Relief

Ex parte Garrison, 47 S.W.3d 105(Tex.App.-Waco 2001)

Defendant requested habeas corpus relieffrom county court at law. The requeststemmed from alleged multiple legalviolations in the Lacy-Lakeview Munici-pal Court. Specifically, the defendantclaimed: (1) that the municipal court

clerk was not properly qualified; (2) thathis speedy trial right was violated; (3)that arrest warrants were invalid becausehe did not have proper notice of trialsetting; and (4) that prosecution wasbarred by limitations. The Tenth Courtof Appeals held that such argumentshad to be raised by a motion to quashthe complaints or a motion to dismissfor violation of his right to a speedytrial, rather than by a pre-trial habeasapplication. The writ of habeas corpus, likeother extraordinary writs, will issue onlywhen the applicant demonstrates thathe has no adequate remedy at law.

6. Civil Law Suits

Whistle Blower Lawsuits

Rogers v. City of Ft. Worth, 89S.W.3d 265 (Tex.App.-Fort Worth 2002)

Reversing the decision of the trial court,the Second Court of Appeals held thatthe Texas Whistleblower Act protectsemployees who report a violation oflaw at the direction of their supervisorrather than on the employee’s owninitiative. The employee was a tempo-rary-duty deputy marshal of the city’smunicipal court. The underlying actionarose when a judge allegedly directedthe employee to write a report regardinganother marshal’s attempt to represent adefendant, in violation of the city code.The marshal was disciplined, but theemployee was fired. On review, theemployee challenged the trial court’sdecision that his report was not the typeof activity that the legislature intendedto be protected by the Act. The appel-late court found that: (1) the deputyreported a violation of law for purposesof Act; (2) evidence supported findingthat deputy’s belief that he was report-ing a violation of law was reasonable;(3) evidence supported finding thatdeputy reported violation in good faith;(4) evidence was sufficient to establish acausal link between report and termina-tion; (5) evidence supported finding thatdeputy’s alleged falsification of acustomer survey report was not solecause of termination; (6) evidence


supported award of $50,000 for mentalanguish; and (7) report was made to anappropriate law enforcement agency.

Malicious Prosecution; CrimeStoppers Privilege; Constitutionality

In re Hinterlong, 109 S.W.3d 611(Tex.App.-Fort Worth 2003)

After being acquitted in municipal courtof minor in possession of alcohol, alocal high school student sued schooldistrict, teacher, unnamed studentinformant, and unnamed person orpersons who allegedly planted a waterbottle with alleged small amount ofalcohol in his vehicle, claiming maliciousprosecution, defamation, and negligencearising out of an allegedly false crimestoppers tip that resulted in student’sexpulsion. Thereafter, student moved tocompel discovery, seeking disclosure ofinformant’s identity. The trial courtdenied motion. Student sought manda-mus relief. On denial of motion forrehearing, the Second Court of Appealsheld that: (1) mandamus was not barredfor lack of due diligence; (2) the publichigh school’s crime stoppers programqualified as a “crime stoppers organiza-tion,” as defined by the crime stoppersstatute; (3) informant’s communicationto a teacher that student had eitherdrugs or alcohol in the trunk of hisvehicle on school property was aprivileged “crime stoppers tip;” and (4)application of statutory crime stoppersprivilege violated open courts provisionof State Constitution.

C. Trial Court Functions

1. Scientific Evidence; Radar

Masonet v. State, 91 S.W.3d 365(Tex.App.-Texarkana 2002)

“Although Kelly modified the pre-existing scheme for determining theadmissibility of scientific evidence, italso provides flexibility to courts toapply both generally accepted scientificprinciples and previous legal determina-tions. In light of society’s widespreaduse of radar devices, and consideringother courts’ acceptance of radar, we

view the underlying scientific principlesof radar as indisputable and valid as amatter of law. Our holding today,however, does not mean radar evidencemust not undergo rigorous scrutinyunder both the second and third prongsof the Kelly test, only that the underlyingscientific theory of radar is valid. TheState must still establish that officersapplied a valid technique and that it wascorrectly applied on the particularoccasion in question.”

2. Contempt

Ex parte Littleton 97 S.W.3d 840(Tex.App.-Texarkana 2003)

To punish a person for constructivecontempt, due process requires: (1) Awritten judgment of contempt, and (2) awritten order of commitment. Thecommitment card cannot suffice as acommitment order because it does notset out the specific time, date, and placethat the contemnor failed to complywith the Court’s orders.

3. Expunction

Specialized Waste Systems, Inc v.State, No. 01-01-01179-CV (Tex.App.-Houston [1st Dist.] 2003)

Since corporations cannot be arrested,and in light of specific legislation to thecontrary, a corporation may not petitionfor expunction of its criminal records.

D. Transportation Code

1. Turn Signal Usage

Reha v. State, 99 S.W.3d 373(Tex.App.-Corpus Christi 2003)

When a turn is made, a signal is requiredregardless of the degree the vehicle isturning.

2. Fictitious Driver’s License

DeLeon v. State, 105 S.W.3d 47(Tex.App.-El Paso 2003)

A Sachse police officer stoppedappellant’s vehicle when he failed tosignal a turn. Appellant identifiedhimself as Orlando DeLeon andproduced a driver’s license bearing thatname. Utilizing the driver’s license

produced by Appellant, the officer ran acomputer check for warrants andlearned that appellant had warrants forspeeding tickets out of Garland, Texas.After confirming the warrants throughthe dispatcher, Heitjan arrested Appel-lant and transported him to the jail. Onappeal, the Court of Appeals held: (1)sufficient evidence supported convic-tion, even though two driver’s licensesfound on defendant were duly issued byDepartment of Public Safety and hadnever been altered; (2) the statuteprohibiting possession of fictitiousdriver’s license did not define term“fictitious,” and thus term had to begiven its plain meaning; and (3) a driver’slicense which contains false informationis a fictitious license.

E. Magistrates

1. Search Warrants; Authority toIssue

State v. Acosta, 99 S.W.3d 301(Tex.App.-Corpus Christi 2003)

Acosta was charged by indictment withthe first-degree felony offense ofpossession with intent to delivercocaine. Officers executed a searchwarrant that authorized the search of aspecified residence for cocaine. A justiceof the peace issued the search warrant.At this time, officers retrieved approxi-mately 40 grams of cocaine. The trialcourt granted defendant’s motion tosuppress. The Court of Appeals heldthat the search warrant was a warrantfor search and seizure of drugs, and notan evidentiary warrant. Thus, theevidence sought was obtainable bywarrant issued by the justice of thepeace.

2. Search Warrants; Sufficiency ofProbable Cause

Serrano v. State, No. 03-02-813-CR(Tex.App.-Austin 2003)

Anonymous tip from a confidentialinformant stated that defendant, a 25-year-old Hispanic male, “is” dealingcocaine in the city and county area, wasmerely conclusory, and by itself, did not


establish probable cause to issue searchwarrant, where it did not show basis forinformant’s knowledge of crime, whenor where crime was being committed, orwhen informant received information.Such a mere conclusory statement in anaffidavit gives a magistrate virtually nobasis at all for making a judgmentregarding probable cause. Accordingly,where a search warrant affidavit fails tostate when the affiant received theinformation from the informant, whenthe informant obtained his information,or when the described incident tookplace, the affidavit is insufficient tosupport the issuance of a searchwarrant.

3. Magistrate’s Order of EmergencyProtection; Constitutionality

Ex parte Flores, No. 08-01-00213-CR(Tex.App.-El Paso 2003)

There is a stigma attached to theissuance of a Magistrate’s Order ofEmergency Protection, as well as legalconsequences, such as the fact that theTexas Family Code requires a court toconsider the commission of familyviolence in making child custodydeterminations. While Article 17.292,C.C.P., does not provide for a cancella-tion or modification procedure, theavailability of the writ of habeas corpusprocedure affords one the opportunityto obtain an adversarial hearing tocontest the emergency protective order.That ameliorates the ex parte nature ofthe procedure. Thus, Article 17.292 isconstitutional.

F. Search and Seizure

1. Arrests Outside of City Limits

Dogay v. State, 101 S.W.3d 614(Tex.App.-Hous. [1st Dist.] 2003)

Amendments to C.C.P. 14.03(g) andcase law allow municipal and county lawenforcement to arrest a person for afelony or misdemeanor offense, otherthan traffic violations, committed in hisor her presence, anywhere in Texas, andare authorized for traffic violationsoccurring within the county where the

officer is employed.

State v. Kurtz, 111 S.W.3d 315(Tex.App.-Dallas 2003)

“We recognize the Fort Worth court hasdisagreed with the Waco court, holdinga city police officer’s jurisdictionremains “at least” countywide. Similarly,the Houston First Court of Appeals hasheld that a city police officer’s jurisdic-tion remains countywide. The FortWorth and Houston courts relied on thelegislative history of Article 14.03,which was enacted at the same time thelegislature repealed the language in theLocal Government Code that allowedfor countywide jurisdiction. Accordingto these courts, the legislative history ofArticle 14.03 showed that thelegislature’s overall intent was toincrease the geographic jurisdiction ofcity officers to make arrests to the entireState of Texas. Interestingly, Article14.03(g) itself expressly limits itsexpansion of jurisdiction to arrest foroffenses other than traffic offenses (empha-sis added). Thus, while the legislatureplainly intended to expand an officer’sjurisdiction to arrest for offenses otherthan traffic offenses, the same cannotbe said of its intent with respect totraffic offenses. Our sister courtsnevertheless ignored that the legislaturerepealed the language that allowed forcountywide jurisdiction. They did so byassuming the legislature could not haveintended to reduce police officers’jurisdiction to arrest for traffic offenseswhile increasing their jurisdiction toarrest for other offenses. In light of thelegislature’s clear decision to treat trafficoffenses differently from other offenses,we cannot agree with this assumption.”

2. Inventory Searches

State v. Perez, 103 S.W.3d 466(Tex.App.-San Antonio 2003)

A police officer was dispatched to aresidence, where he found defendantarguing with his girlfriend. Defendantfound another man with the girlfriend,and the girlfriend and defendant beganto argue. Defendant had been drinking

and refused to cooperate with police.The officer arrested defendant forpublic intoxication and asked otherofficers to collect defendant’s personalproperty from defendant’s vehicle.While inventorying defendant’s propertyat the scene, an officer found cocaine indefendant’s wallet. Defendant’s vehiclewas locked and left at the scene atdefendant’s request, while defendantand his property were taken to thepolice station. Defendant argued thatthe search of his wallet was unlawful,because his vehicle had not beenimpounded, and the search could not bejustified as an inventory search. Theappellate court held that the policeaction in locking and securing thevehicle at the scene was the same astowing the vehicle to the station, andthe search was, therefore, a lawfulinventory search.

3. Expectation of Privacy; RentalVehicles

Pruneda v. State, 104 S.W.3d 302(Tex.App.-Texarkana 2003)

Appellant testified he had permissionfrom the person who rented the vehicleto consent to the vehicle’s search.Nonetheless, appellant was prohibitedby the terms of the rental agreementfrom driving the vehicle. Under theterms of the agreement, additionaldrivers were required to be listed on therental agreement and to present theirdriver’s licenses to the rental store forapproval. Because appellant was notauthorized under the terms of therental agreement to drive this vehicle, helacked standing to challenge the searchof the vehicle.

4. “Plain Smell” Doctrine

Barocio v. State, No. 14-01-00944-CR(Tex.App.-Hous. [14 Dist.])

Reiterating the holding in Steelman, “weacknowledge the academic and judicialdebate about the ‘plain smell’ doctrine.Nonetheless, it is merely an academicexercise for an intermediate court toinitiate such a debate when the issue has


officer. A general-law city must hold anelection pursuant to Chapter 25,L.G.C., if it wishes to adopt the citymanager form of government.Absent compliance with the proceduresof Chapter 25, the city council of ageneral-law city will not have authorityto appoint a city manager to administerthe municipal business and exerciseother authority conferred upon a citymanager by Chapter 25, L.G.C. Thegoverning body may not delegate toanother person the authority as budgetofficer that Chapter 102, L.G.C.,confers upon the mayor or the citymanager appointed in compliance withChapter 25, L.G.C. The mayor isexpressly authorized to require othercity officers to provide necessaryinformation to him and may alsodelegate to city employees non-discretionary ministerial andadministrative tasks necessary to carryout his statutory duties as budgetofficer.JC-0549 (9/4/2002)Whether Article 1.051 of the TexasCode of Criminal Procedurerequiring that counsel for indigentcriminal defendants be appointedwithin one day of the defendant’srequest in populous counties andwithin three days of the request inless populous counties, violatesstate and federal equal protectionguaranteesA court would likely find that Article

AG Opinions continued from page 1

been decided by our state’s highestcriminal court.”

5. Confessions (induced by CapiasPro Fine)

Murphy v. State, 100 S.W.3d 317(Tex.App.-San Antonio 2002)

Appellant and a companion were theprimary suspects in a triple homicideinvestigation. During the course of theinvestigation, a detective arranged aninterview with appellant. Appellant

agreed to meet at the police station forquestioning. When appellant arrived atthe police station, he was informed thathe was a suspect in an unsolved triplehomicide and was advised of his rights.Appellant stated that he understood hisrights and would waive them to speakwith the detective. During the subse-quent interrogation, appellant deniedany involvement in the homicides. Afterdetermining the homicide interview wasgoing no where, the detective decided to

arrest appellant. Unbeknownst toappellant, however, the detectivearrested him on a municipal court capiaspro fine warrant. The appellant subse-quently confessed. The appellant,feeling duped, challenged thevoluntariness of the confession. TheSan Antonio Court of Appeals heldthat it is not critical that a suspect knowthe charges to which he is susceptiblebefore making a knowing and intelligentwaiver of his privilege against self-incrimination.

1.051(c) of the Code of CriminalProcedure, as amended by the TexasFair Defense Act, requiring that counselfor indigent criminal defendants beappointed within one day of thedefendant’s request in populouscounties and within three days of therequest in less populous counties doesnot violate the equal protectionguarantees of the state and federalconstitutions. The legislature hasdefined “indigency” and provided aflexible standard applicable to allcounties for the purposes of appointingcounsel to indigent defendants underArticle 1.051. A court would likely findthat the Article 1.051 indigencystandard, because of its relativeflexibility, does not violate, on its face,the state and federal guarantees ofequal protection.JC-0551 (9/4/2002)Whether the term “two designatedlanes of a highway,” as used inSection 545.0651(b) of the TexasTransportation Code, may beconstrued to mean “two or morelanes”Section 545.0651(b) of the TexasTransportation Code authorizes amunicipality to “restrict, by class ofvehicle, through traffic to twodesignated lanes of a highway in themunicipality.” The term “two” meansprecisely two and may not be construedto mean “two or more.”JC-0552 (9/4/2002)Whether a county is required to

establish a certificate of registrationprogram for dangerous wildanimalsThe commissioners’ court of everycounty that has not entirely prohibitedthe “ownership, possession,confinement, or care” of dangerouswild animals within its jurisdiction isrequired to have adopted, no later thanDecember 1, 2001, an order “necessaryto implement and administer thecertificate of registration program”established by Subchapter E ofChapter 822 of the Texas Health andSafety Code. Sec. 822.116(b), H.S.C. Acommissioners’ court may not exempt,from the requirements of SubchapterE, any person or organization notspecifically excepted under Section822.102(a). Any resident of the countymay bring an action in mandamus in adistrict court of the county to compelthe commissioners’ court to adopt thecertificate of registration program.JC-0554 (9/12/2002)Whether a towing company mayprovide certain services for theowner of a parking facilitySection 684.082(a) of theTransportation Code prohibits atowing company from providing freeof charge to the owner of a parkingfacility services such as roadsideassistance or lot maintenance, includingparking space striping and fire lanemarkings in connection with theremoval of vehicles from a parkingfacility. The penalty attached toviolations of Chapter 684 is applicable

B


to both parking facility owners andtowing companies. Various localprosecutors are responsible for theenforcement of this statute inmunicipal and justice courts.JC-0584 (11/26/2002)Whether Chapter 57 of theGovernment Code requires theappointment of licensed courtinterpreters in certain circumstancesChapter 57 of the Government Codeapplies to a plea in a misdemeanor casein justice court. A court clerk whomerely converses with a defendant in alanguage other than English does not“act as a licensed court interpreter”within the meaning of Chapter 57. Ineither a civil or criminal proceeding,whether a party has filed a motion foror a witness has requested theappointment of an interpreter willdepend upon the facts and is a questionfor the trial court in the first instance.The court may grant or deny such amotion or request. In a criminalproceeding, a court must also take intoaccount the defendant’s constitutionalright to an interpreter and Article 38.30of the Code of Criminal Procedure.Chapter 57 establishes qualifications forspoken-language interpreters appointedin criminal cases under the authority ofArticle 38.30.If the only person who is licensed tointerpret in a particular language residesin a distant location, a court in apopulous county would be required toappoint that person. On the otherhand, if there is no interpreter licensedto interpret in a particular language, theappointment of an unlicensed personmay be within a court’s inherent power.Chapter 57 does not alter preexistinglaw on the payment of appointed courtinterpreters. It does not requirecounties to pay for spoken-languageinterpreters in civil cases. Courts retaintheir authority under the Rules of CivilProcedure and the Civil Practice andRemedies Code to fix an interpreter’scompensation and to direct how aninterpreter will be paid in civil cases. Acounty may not require a court to select

an interpreter from an interpreterservice under contract with the county,although a court may choose to do so.GA-048 (3/27/2003)Authority of a judge or magistrateto attach a financial condition to apersonal bond or to permit a cashdeposit of less than the full bailamountA judge or magistrate may not attach afinancial condition to a personal bond,or authorize the deposit of less than thefull cash amount of bail. In light of thestatutory language of Articles 17.02 and17.03 of the Code of CriminalProcedure, as well as the holdings inProfessional Bondsmen and Ex parte Tuckerand of Attorney General Opinions JM-363 (1985) and JC-0215 (2000), weconclude that a court does not have theauthority to attach a financial conditionto a personal bond, or to permit orrequire a cash deposit of less than thefull amount of the bail set. Article17.15 of the Code of CriminalProcedure grants a court discretionaryauthority to set the amount of bail, butnot to require that bail be secured in aparticular manner, or to imposeconditions not contemplated byChapter 17.GA-061 (04/17/2003)Whether certain unauthorized feescollected by counties andmunicipalities, that cannot bereturned to the persons who paidthe fees, constitute taxes that mustbe remitted to the Comptrollerunder Chapter 111 of the Tax Codeor abandoned property governed bythe Property CodeFees collected by counties andmunicipalities pursuant tounauthorized pretrial diversionagreements are not taxes governed byChapter 111 of the Tax Code. Countiesand municipalities must administerabandoned fees and interest earned onthe fees pursuant to Chapters 74 and 76of the Property Code. AttorneyGeneral Opinion JC-0463 (2002) ismodified to the extent it suggests that

abandoned fees must always bereported and delivered to theComptroller pursuant to Chapter 74 ofthe Property Code.GA-067 (5/3/2003)Authority of a municipal judge toexamine the state’s witnesses if theState is not represented by counselwhen the case is called for trialA municipal judge does not have theauthority to examine the State’switnesses if the State is not representedby counsel when the case is called fortrial. The Texas Rules of Evidence donot authorize a municipal or justicecourt to call and examine witnesseswhen a State’s attorney is not present.Nor does the common law providesupport for a municipal or justicecourt’s authority to call and examinewitnesses when a State’s attorney is notpresent at trial. While they have notanswered the precise questionpresented here, Texas courts haveregularly disapproved of judgesexamining witnesses as a generalpractice. The concern is most acute ina jury trial because of the danger that acourt’s questions could influence ajury’s decision.Also, whether trial is to a jury or to thecourt, when a court examines witnesses,it risks “becoming an advocate in theadversarial process and losing theneutral and detached role required forthe fact finder and the judge.” Courts inTexas have but limited authority “toquestion a witness when seekinginformation only, to clarify a point, orto get the witness to repeat somethingthat the judge could not hear.” Thatauthority does not go so far as topermit a court to call and examine theState’s witnesses at a trial without anattorney for the State.GA-089 (7/29/2003)

Whether Occupations Code, Section1704.304, providing that certainpersons may not recommend a bailbond surety, an attorney, or a lawfirm to a criminal defendant,

AG Opinions continued on page 22


ETHICS UPDATE

The following are examples of judicialmisconduct that resulted in disciplinaryaction by the Commission in Fiscal Year2003. These are illustrative examples ofmisconduct and do not represent everydisciplinary action taken by theCommission in Fiscal Year 2003. Thesummaries below are listed in relation tospecific violations of the Texas Code ofJudicial Conduct, the TexasConstitution, and other statutes or rules.They are also listed in descending orderof the severity of the disciplinary actionimposed, and may involve more thanone violation. The full text of anypublic discipline may be requested bycontacting the Commission at P.O. Box12265, Austin, TX 78711-2265;telephone 512/463-5533 or tollfree877/228-5750.

These sanction summaries are providedwith the intent to educate and informthe judiciary and the public regardingmisconduct that the Commission foundto warrant disciplinary action in FiscalYear 2003. The reader should note thatthe summaries provide only generalinformation and omit mitigating oraggravating facts that the Commissionconsidered when determining the levelof sanction to be imposed. Additionally,the reader should not make anyinferences from the fact situationsprovided in these summaries. It is theCommission’s sincere desire thatproviding this information will protectand preserve the public’s confidence inthe integrity, impartiality, andindependence of the judiciary andfurther assist the judiciary inestablishing, maintaining, and enforcingthe highest standards of judicial andpersonal conduct.

CANON 2A: A judge shall complywith the law and should act at alltimes in a manner that promotespublic confidence in the integrityand impartiality of the judiciary.

• The judge failed to comply with thelaw by issuing a court order withoutauthority in a matter over which hiscourt had no jurisdiction. [Violation ofCanon 2A, Texas Code of JudicialConduct and Article V, Section 1-a(6)A,Texas Constitution.] Public Reprimand ofJustice of the Peace Bennie Ochoa, III (12/17/02).

• The judge used $40.00 of countyfunds for his personal use to pay a lawnmowing service when his personalcheck was not accepted. The judgerepaid the funds after the countyauditor brought the matter to hisattention. Further, the judge frequentlydiscussed pending judicial matters,including his intended rulings, in public.[Violation of Canon 2A and 3B(10),Texas Code of Judicial Conduct andArticle V, Section 1-a(6)A, TexasConstitution.] Public Reprimand of FormerJustice of the Peace Steven B. Duke (06/27/03).

• The judge violated the Texas Code ofCriminal Procedure by issuing an arrestwarrant and magistrating a defendant ina matter in which the judge was thevictim. By these actions, the judge failedto follow proper procedures anddemonstrated a lack of professionalcompetence in the law. [Violation ofCanons 2A and 3B(2), Texas Code ofJudicial Conduct.] Public Admonition ofMunicipal Court Judge Alberto Martinez(06/27/03).

• In adjudicating a truancy matter, thejudge improperly applied certain

provisions of the Texas EducationCode and the Texas Code of CriminalProcedure, while failing to comply withother applicable or mandatoryprovisions of those statutes [Violationof Canons 2A and 3B(2), Texas Codeof Judicial Conduct.] Private Warning andOrder of Additional Education of a Justiceof the Peace (10/29/02).

• The judge allowed his small claimscourt to be used as a collection agencyfor a party who had been issued a civiljudgment by the judge. The judge alsoimproperly handled the conversion of acriminal complaint into a civil lawsuit,failed to properly notify the parties ofthis action, and entered a judgment thatincluded a “Payment Agreement,”which ordered a civil litigant to pay herjudgment debt through the judge’soffice. [Violation of Canons 2A and3B(2).] Public Warning and Order ofAdditional Education of Oscar Tullos, Justiceof the Peace (06/27/03).

CANON 2B: A judge shall not allowany relationship to influence judicialconduct or judgment. A judge shallnot lend the prestige of judicialoffice to advance the privateinterests of the judge or others; norshall a judge convey or permitothers to convey the impression thatthey are in a special position toinfluence the judge. A judge shallnot testify voluntarily as a characterwitness.

• The judge held a formal pressconference in his courtroom whilewearing his judicial robe, publiclycriticizing an attorney for what thejudge perceived as misconduct in ahigh-profile case pending in a secondjudge’s court. The press conference was

Examples of Improper Judicial Conduct


held during a period of intense mediaattention directed at the second judge,who had just recused himself from thecase amid allegations of judicialmisconduct. Following his pressconference, the judge sent an e-mail tonumerous friends, family andcolleagues, in an attempt to explain hisdecision to hold the press conference.The Commission conducted formalproceedings and a public trial. Thejudge was found to have engaged inwillful conduct that violated the Codeof Judicial Conduct, by allowing arelationship to influence his conductand judgment and by lending theprestige of judicial office to promotethe private interests of the judge andothers. [Violation of Article V, Section1-a(6)A, Texas Constitution and Canon2B, Texas Code of Judicial Conduct.]Public Censure of Former County Court atLaw Judge Robert Jenevein (01/17/03).

• The judge called another judge onbehalf of the daughter of a countycommissioner, regarding a trafficcitation the woman had received. TheCommission determined that the judgeabused his judicial position in an effortto influence another judge’s decisionsand obtain favorable treatment for thedaughter of a county commissioner.[Violation of Canon 2B, Texas Code ofJudicial Conduct.] Public Warning ofJustice of the Peace Jose Canales (06/27/03).

• The judge lent the prestige of hisoffice by displaying on his office door aposter stating, in bold letters, “Re-Elect’98,” and containing caricatures andnames of several individuals who wereeither holding or running for electiveoffice in the judge’s county. [Violationof Canon 2B, Texas Code of JudicialConduct.] Public Admonition of Justice ofthe Peace Bennie Ochoa, III (12/17/02).

• On behalf of his daughter, a districtjudge wrote a letter of representationon official court stationery to amunicipal court. In this letter, the judgeentered a plea of “not guilty” for hisdaughter, and sought the name of theprosecuting attorney “for possible plea

negotiations.” [Violation of Canon 2B,Texas Code of Judicial Conduct.] PrivateAdmonition of a District Judge (06/13/03).

• The judge voluntarily appeared in hisjudicial robe in an advertisement forSouthwestern Baptist TheologicalSeminary that was published in anewspaper. The Commission concludedthat the judge lent the prestige of hisjudicial office to advance the privateinterests of the Seminary. [Violation ofCanon 2B, Texas Code of JudicialConduct.] Private Warning of a CountyCourt at Law Judge (12/28/02).

• The judge lent the prestige of hisjudicial office to advance his ownprivate interest by sending a letter totwo assistant district attorneys, urgingthe imprisonment of a particularcriminal defendant with whom he had apersonal dispute. In the letter, writtenon his law firm stationery, the judgemade a special point of noting hisposition as a judge, and used the title“Judge” before his name in theletterhead to identify himself. [Violationof Canon 2B, Texas Code of JudicialConduct.] Private Admonition of aMunicipal Court Judge (02/28/03).

CANON 3B(2): A judge should befaithful to the law and shall maintainprofessional competence in it. Ajudge shall not be swayed bypartisan interests, public clamor, orfear of criticism.

• The judge failed to obtain the requiredhours of mandatory judicial educationfor Fiscal Year 2002. [Violation of Rule3a(2), Texas Rules of JudicialEducation, and Canons 2A and 3B(2),Texas Code of Judicial Conduct.] PublicReprimand of Former Justice of the PeaceKathryne Gabbert (04/10/03).

• In resolving a matter involving thedefendant’s failure to show proof ofliability insurance, where the defendantsubsequently timely provided suchproof to the court, the judge charged a$35 “insurance dismissal fee,” althoughsuch fee is not allowed by law.[Violation of Canon 3B(2), Texas Code

of Judicial Conduct.] Private Admonitionof a Municipal Court Judge (08/07/03).

• The judge improperly exercised hiscontempt authority by failing to servethe alleged contemnors with properlegal process, and by failing to providethem with full and unambiguousnotification of when, how, and by whatmeans they had been guilty ofcontempt. The judge also failed toproperly admonish the defendantsabout proceeding without counsel atthe contempt hearings when they facedthe possibility of a jail term. He alsofailed to obtain the defendants’knowing and voluntary waiver ofcounsel, before finding them incontempt and ordering them to jail.Further, the judge failed to provideproper notice to the parent or guardianof a minor charged with a criminaloffense, as required by Texas Code ofCriminal Procedure, Art. 45.0215. Thejudge’s actions in exercising hiscontempt authority, and his proceduresinvolving a minor charged with acriminal offense, demonstrated a lackof professional legal competence.[Violation of Canon 3B(2), Texas Codeof Judicial Conduct.] Private Order ofAdditional Education of a Justice of thePeace (02/14/03).

• The judge failed to obtain mandatoryjudicial education hours as required byRule 4(a)(1) of the Texas Rules ofJudicial Education. [Violation ofCanons 2A and 3B(2).] PublicAdmonition of Diana Rodriquez, Justice ofthe Peace (10/23/02) and PublicAdmonition of Elihu Dodier, MunicipalJudge (10/23/02)

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.

• In response to a sarcastic remark


made by an African-American courtreporter, the judge joked “I would giveyou a black eye” for making thatremark “if I could tell” by seeing itswell, or words to that effect. TheCommission concluded that the judge’scomment was insensitive and lackedthe appropriate dignity expected of ajudicial officer in his dealings withcourt staff. [Violation of Canon 3B(4),Texas Code of Judicial Conduct.]Private Admonition of a Retired Senior Judge(12/17/02).

• The judge berated a law enforcementofficer with whom the judge dealt in anofficial capacity and threatened herwith contempt. The Commissionconcluded that the judge’s actionslacked the appropriate patience, dignityand courtesy expected of a judicialofficial. [Violation of Canon 3B(4),Texas Code of Judicial Conduct.]Private Admonition and Order of AdditionalEducation of a Justice of the Peace (06/13/03).

• The judge failed to follow properprocedures when he ordered the arrestof a pro se defendant following aprotective order hearing, without firstreading the defendant his statutorywarnings, and without affording thedefendant the right to counsel, theright to waive counsel, or the right toremain silent. Additionally, the judge’sfrustration with the applicant’s requestto withdraw the request for a protectiveorder resulted in a comment from thejudge that suggested an unfavorablecomparison between the defendant andCharles Manson, demonstrating a lackof patience, dignity, and courtesy.[Violation of Canons 3B(2) and 3B(4),Texas Code of Judicial Conduct.]Private Order of Additional Education of aCounty Judge (06/27/03).

CANON 3C(5): A judge shall notfail to comply with Rule 12 of theRules of Judicial Administration,knowing that the failure to complyis in violation of the rule.

• A citizen requested several administra-

tive judicial records from the judgepursuant to Rule 12 of the Texas Rulesof Judicial Administration. When thejudge did not respond, the citizensought the assistance of the Office ofCourt Administration (OCA). A specialOCA committee then sought therecords, but the judge failed to respondto two separate requests. Citing thejudge’s lack of cooperation, the com-mittee published an opinion against thejudge, ordering him to tender therecords to the citizen. Two months later,the judge complied with the citizen’srequest. The judge, who had served onthe bench for 25 years, then resigned. Inhis responses to the Commission aboutthe matter, the judge testified that heintentionally ignored the requestsbecause the citizen had a long history ofdisruptive, bullying, and antagonisticbehavior towards court staff. [Violationof Canon 3C(5), Texas Code of JudicialConduct.] Private Warning of a MunicipalCourt Judge (10/29/02).

CANON 4A: A judge shall conductall of the judge’s extra-judicialactivities so that they do not (1) castreasonable doubt on the judge’scapacity to act impartially as ajudge; or (2) interfere with theproper performance of judicialduties.

• The Commission was apprised of thejudge’s extra-judicial conduct, includingthat in 1977 he pled “no contest” to theoffense of driving while intoxicated, hewas convicted in 1984 of a federalmisdemeanor offense of transportingillegal aliens from Mexico, and he wasconvicted in 1993 for violating federalmigratory bird protection laws. Further,the judge, while acting in his judicialcapacity, improperly magistrated hisbrother, improperly reduced a pendingcriminal charge; and unlawfully releasedcertain criminal defendants on personalbonds although they were charged withaggravated felony offenses. Based onthe judge’s judicial and extra-judicialconduct, the Commission determinedthat the judge willfully engaged in

conduct that casts public discredit uponthe judiciary, the judge failed to complywith the law, allowed a relationship toinfluence his judicial conduct, failed tomaintain professional competence inthe law, failed to perform his judicialduties without bias or prejudice, andfailed to conduct his extra-judicialactivities so that they would not castreasonable doubt on his capacity to actimpartially as a judge or interfere withthe proper performance of his judicialduties. [Violation of Article V, Section1-a(6)A, Texas Constitution; Canons2A, 2B, 3B(2), 3B(5), 4A(1) and 4A(2),Texas Code of Judicial Conduct.] PublicCensure and Order of Additional Educationof Justice of the Peace Francis John Truchard(10/11/02).

• The judge wrote and signed a letter onofficial court stationery to the superin-tendent and board members of theschool district in his city. The lettercontained several criticisms of thesepersons, including of their behavior andactions on certain controversial schooldistrict matters. The judge’s letter wasdiscussed publicly at a school boardmeeting and through the media. Be-cause any dispute between the superin-tendent and school board could haveresulted in a lawsuit being filed in thejudge’s court, the Commission con-cluded that the judge’s public com-ments, expressed in his letter, consti-tuted an extra-judicial activity which castreasonable doubt on the judge’s capacityto act impartially as a judge. [Violationof Canon 4A(1), Texas Code of JudicialConduct.] Private Warning and Order ofAdditional Education of a District Judge(10/25/02).

CANON 4(I)(2): A judge shall filefinancial and other reports asrequired by law.

• The Texas Ethics Commission (TEC)notified the Commission that the judge,a candidate for reelection to theappellate bench, had failed to file severalrequisite campaign finance reports overthe past two years, and that TEC had


fined the judge $20,500.00 for hisinaction. The judge’s failure to timelyfile the reports, along with the effortsof TEC and the Texas AttorneyGeneral’s Office to collect the finesassessed against the judge, receivedstatewide media attention during theelection. In his testimony before theCommission, the judge acknowledgedthat he failed to timely file the campaignfinance reports as required by the TexasElection Code. The Commissionconcluded that, as a judge and judicialcandidate subject to the JudicialCampaign Fairness Act, the judgeknowingly failed to timely file campaignfinance reports as required by law.[Violation of Canons 2A, 4I(2) and5(4), Texas Code of Judicial Conduct.]Public Warning of Appellate Judge PaulWomack, Court of Criminal Appeals(6/27/03).

Article V, Section 1-a(6)A, TexasConstitution: Any Justice or Judgeof the courts established by thisConstitution or created by theLegislature as provided in Section 1,Article V, of this Constitution, may,subject to the other provisionshereof, be removed from office forwillful or persistent violation ofrules promulgated by the SupremeCourt of Texas, incompetence inperforming the duties of the office,willful violation of the Code ofJudicial Conduct, or willful orpersistent conduct that is clearlyinconsistent with the properperformance of his duties or castspublic discredit upon the judiciaryor administration of justice. Anyperson holding such office may bedisciplined or censured, in lieu ofremoval from office, as provided bythis section... .

• During two magistrations recorded onvideotape at the jail, the judge cursedand verbally abused two defendants; thejudge also directed a derogatory racialslur at one defendant and advisedanother that he had no rights. TheCommission conducted a suspension

hearing, and the judge gave testimony.Upon the Commission’srecommendation, the Supreme Courtof Texas suspended the judge fromoffice without pay, pending finaldisposition of the complaint before theCommission, pursuant to the authoritycontained in Article V, Section 1-a(6)A,Texas Constitution and Rule 15(b),Procedural Rules for the Removal orRetirement of Judges. Order ofSuspension of Justice of the Peace Matt H.Zepeda (12/16/02).

• The judge issued an invalid arrestwarrant for a non-existent offense of“False Accusations” and used localpolice to place a person in custody afterthe judge was informed that there wasno such criminal offense. [Violation ofArticle V, Section 1-a(6)A, TexasConstitution, and Canon 2A.] PublicReprimand of Bennie Ochoa, III, Justice ofthe Peace (12/17/02).

• In two complaints, plaintiffs’ casesremained pending for years with nodisposition as a result of a backlog ofcases, disorganization, and otheradministrative problems among thejudge’s court staff. In a third complaint,the judge was found to have engaged infiscal mismanagement by failing to fulfillhis statutory obligation to depositmonies as required by the Local Gov-ernment Code and the Code of Crimi-nal Procedure. An auditor reported tothe County Commissioner’s Court thatthe judge’s court had thousands ofdollars worth of unposted receipts,numerous posting errors, and approxi-mately $6,650.00 in missing funds.These audit findings indicated thatsimilar findings and recommendationshad been made to the judge on numer-ous occasions in the past. Further, itwas determined that the judge failed tofile monthly activity reports with theOffice of Court Administration (OCA)since 2001, despite receiving notices thatthe reports were overdue. A follow-upaudit reflected that receipts still werenot being immediately given whenpayment was tendered, even after the

judge became aware of theCommission’s investigation. TheCommission concluded that the judgepersistently failed to maintain andmonitor his civil court docket, and hadfailed to properly account for anddeposit monies collected by his courtand to timely file with OCA the requiredmonthly activity reports. The judge’spersistent failure to comply withstatutory requirements in the LocalGovernment Code, the Code ofCriminal Procedure and the Govern-ment Code was clearly inconsistent withthe proper performance of his duties.[Violation of Article V, Section 1-a(6)A,Texas Constitution and Canon 2A,Texas Code of Judicial Conduct.] PublicAdmonition and Order of AdditionalEducation of Justice of the Peace Juan Jasso(08/25/03).

• While a patron at a local bar, the judgeinitiated a physical confrontation withanother customer resulting in a criminalcharge being filed against the judge fordisorderly conduct, to which he entereda plea of no contest. The judge, whohad consumed 4-6 beers in the hourspreceding the incident, left the sceneimmediately after being told that thepolice had been called. The judge’sconduct at the bar and the resultingcriminal charge received local mediacoverage. [Violation of Article V,Section 1-a(6)A, Texas Constitution.]Public Admonition of James Keeshan, DistrictJudge (09/03/02).

• In two complaints, plaintiffs’ casesremained pending for years with nodisposition as a result of a backlog ofcases, disorganization, and otheradministrative problems among thejudge’s court staff. In a third complaint,the judge was found to have engaged infiscal mismanagement by failing to fulfillhis statutory obligation to depositmonies as required by the LocalGovernment Code and the Code ofCriminal Procedure. An auditorreported to the county commissioners’court that the judge’s court had

Judicial Conduct continued on page 22


RESOURCES FOR YOUR COURT

The Annual Report of the Texas Judicial System is availableonline at http://www.courts.state.tx.us/publicinfo/annual_reports.asp. Included in this newsletter on page 21is summary information on all Texas municipal courts. Inthe online version, courts may compare their casedisposition records and amount of revenue collected tothose of nearby or similar sized cities.

Courts and the public can access all reported data from1993 through the Texas Judiciary Online http://168.39.176.29/OCA/ReportSelection.aspx and can searchthe comprehensive online judicial directory: http://168.39.176.29/OCA/DirectorySearch.aspx. Interestedpersons can bring up the monthly reports of any court inTexas.

Courts are reminded that clerks are able to directly entermonthly reports online through the Internet. For apassword and assistance, contact OCA staff at 512/463-1642.

Report of the Judicial Committee on InformationTechnology (JCIT), Fall 2003

The Fall 2003 JCIT Report is now published only inelectronic form and is available on the JCIT website http://www.courts.state.tx.us. For more details, please visit the fullFall 2003 Report at http://www.courts.state.tx.us/jcit/Newsletters/Fall2003.pdf. Paper copies are available bycalling 512/475-4776. JCIT/OCA has also coordinated theclaim by courts of surplus computers available from theState of Texas Department of Information Resources. Seeclaim form on page 18 of this newsletter.

SCJC Annual ReportThe 2003 Annual Report of the State Commission on Judicial Conduct is available online: www.scjc.state.tx.us. Summariesof many of the FY 2003 private and public sanctions are included in this newsletter. The Annual Report indicates a rise inthe number of disciplinary actions regarding municipal judges. Municipal judges make up 36 percent of the State Judiciary.In FY 03, eight percent of the cases filed with the Commission were concerning municipal judges. Regretfully, 22 percentof the Commission’s disciplinary actions were issued against municipal judges. In past years, municipal judges have had alower percentage--an average of 15.82 percent between 2000 and 2002.

OCA Annual Report


Surplus Property Claim Form

Date: _______________________ County: ________________________

1. Name of Court: ____________________________________________________________________

2. Contact Person: ____________________________________________________________________

3. Contact Title: _______________________________________________________________________

4. Telephone Number: __________________________________________________________________

5. Number of workstations needed: _______________________________________________________

6. Would you like a list of free software that’s available for downloading from the Internet, including a suite of officeprograms that is compatible with and comparable to Microsoft Office? ___ Yes ___ No

7. Do you have internet access? ___ Yes ___ No

8. Is it dial-up or cable? ___ Dial-up ___ Cable E-mail address _______________________________

9. Indicate the location most convenient for pickup by entering a “1” by the address below. In the event that suppliesare exhausted at the preferred location, please select a second location by entering a “2”.

Indicate Address Indicate AddressPickup PickupLocation Location

Austin Houston

As soon as the computers are available for pick-up, OCA will send you a confirmation notice to inform you of the numberof workstations reserved for your court. OCA will also provide instructions for pick-up or shipment of the equipment atthat time.

The State of Texas Department of Information Resources contracts with vendors for best possible pricing on softwareand hardware. To view a product catalog, visit their website at http://www.dir.state.tx.us/store/index.html.

Thank you for your assistance.

Fax this form to: Office of Court Administration205 W. 14th Street, Suite 600P.O. Box 12066Austin, Texas 78711-2066Telephone: 512/463-1625Fax: 512/463-1648Attn: Maria Keenmon

For quick response,

fax to:512/463-1648


BackgroundIn FY 2003, municipal courts and municipal courts of recordoperated in 883 Texas cities. Municipal courts have originaland exclusive jurisdiction over violations of city ordinancesand resolutions, rules or orders of joint boards that operateairports under Section 22.074, Transportation Code and thatare punishable by a fine not to exceed: 1) $2,000 in casesarising under ordinances or resolutions, rules or ordersinvolving fire safety, zoning, public health, and sanitation; and2) $500 in all other cases arising under a municipal ordinanceor airport board resolution, rule or order.

In addition, municipal courts have concurrent jurisdictionwith justice of the peace courts in misdemeanor casesresulting from violations of state laws within the city limits orproperty owned by the municipality located in themunicipality’s extraterritorial jurisdiction when punishment islimited to a fine and does not include confinement as anauthorized sanction, pursuant to Article 4.14, Code ofCriminal Procedure. Municipal courts of record may alsohave additional jurisdiction provided by local ordinance.

Filings and Dispositions

• Over the past ten fiscal years (FY 1994 to FY 2003),there has been a gradual increase in the overall numberof new cases per year. In FY 2003, a total of 8,099,088new cases were filed, 27.0 percent more than the6,376,571 new cases filed during FY 1994. Over the pastfive fiscal years (FY 1999 to FY 2003), an average of7,516,223 new cases were filed per year in the municipalcourts.

• Traffic cases accounted for 81.9 percent (6,635,939 cases)of all cases filed in the municipal courts during FY 2003.Non-traffic cases comprised the remaining 18.1 percent(1,463,149 cases), which was a higher percentage than inany of the previous ten fiscal years. The ten-year (FY

1994 to FY 2003) average percentage of non-trafficcases filed per year was 16.5 percent.

• Case filings in the eight largest metropolitan citiesaccounted for 45.1 percent of all municipal court filingsin the state. In FY 2003, 3,649,548 cases were filed inTexas’ eight largest cities—Houston, Dallas, SanAntonio, Austin, El Paso, Fort Worth, Arlington, andCorpus Christi.

• In FY 2003, municipal courts disposed of 7,568,050cases, which exceeded both the five-year (FY 1999 to FY2003) average of 7,224,721 dispositions per year, as wellas the ten-year (FY 1994 to FY 2003) average of6,657,668 dispositions per year. Overall, there has been agradual upward trend in the number of cases disposedin municipal courts over the past decade.

• During FY 2003, non-parking traffic cases accounted forthe majority (75.2 percent or 5,693,650 cases) of allmunicipal court cases disposed. Parking cases comprised11.0 percent (832,392 cases), non-traffic state law casestotaled 10.7 percent (813,040 cases), and non-traffic cityordinance cases accounted for the remaining 3.0 percent(228,968 cases) of all dispositions during the fiscal year.

• Approximately 47 percent (3,533,462 cases) of allmunicipal court cases disposed in FY 2003 weredisposed prior to trial. Of the 3,533,462 traffic and non-traffic cases disposed prior to trial, 83.5 percent involvedpayment of a fine or forfeiture of a deposit made toensure appearance.

• The percentage of non-traffic cases disposed at trial(46.1 percent, or 479,996 cases) in FY 2003 was nearlyequivalent to the percentage of non-traffic casesdisposed prior to trial (47.2 percent, or 491,355 cases).In contrast, only 23.4 percent (1,524,309 cases) of traffic

Caseload Trends in the Municipal CourtsAnalysis of Activity for Year Ended August 31, 2003

Cases Filed and Disposed: FY 1994 - 2003

0.0

1.02.0

3.04.0

5.06.0

7.0

8.0

94 95 96 97 98 99 00 01 02 03

Fiscal Year

Num

ber

of C

ases

(Mill

ions

)

Traffic Filings Non-Traffic Filings Overall Dispositions

39.3 %26.3 % 34.4 %

96.8 %

3.0 %

0.2 %

46.6 %

23.4 % 30.0 %

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

Non-Parking Parking All Traffic

Disposition of Traffic Cases, FY 2003

Prior to Trial At Trial Dismissals - Other


cases were disposed at trial during the fiscal year.

• The average municipal court clearance rate (total casesdisposed divided by total cases added) for FY 2003 was93.4 percent, which was the lowest rate for any year sinceFY 1997. The five-year (FY 1999 to FY 2003) averageclearance rate was 96.1 percent, while the ten-year (FY1994 to FY 2003) average clearance rate was 93.1 percent.

Other Activity

• In FY 2003, guilty findings were made in 98.2 percent(1,175,472 cases) of the 1,197,564 bench trial cases thatwere not dismissed. In contrast, guilty verdicts werereached in 70.8 percent (3,295 of 4,651 cases) of jurytrial cases that were not dismissed.

• Of all cases in which a finding of guilt wasreached at trial by judge or jury (1,178,767 cases), 1.1percent (12,469 cases) were appealed, which continued anoverall downward trend in the number of cases appealedsince FY 1993. The five-year average (FY 1999 to FY2003) percentage of cases appealed was 1.4 percent peryear, indicating stabilization of the decreasing trend.

• Over the last five fiscal years, the number of emergencyprotective orders issued increased 110.9 percent (from3,353 in FY 1999 to 7,071 in FY 2003), and the numberof arrest warrants issued for felony and misdemeanor

cases increased 9.9 percent (from 1,992,988 in FY 1999 to2,190,291 in FY 2003).

• Juvenile case activity was greater in FY 2003 than at anytime during the previous five fiscal years. In FY 2003,municipal courts handled 339,945 juvenile matters, 32.2percent (109,595 cases) of which involved TransportationCode violations. The 72,466 Alcoholic Beverage Codecases filed during FY 2003 greatly exceeded the five-year(FY 1999 to FY 2003) average of 46,296 cases filed peryear. The number of Failure to Attend hearings (29,376hearings) and the number of Education Code violationsfiled (11,797 cases) also exceeded their respective five-year(FY 1999 to FY 2003) averages of 12,721 hearings heldand 8,758 cases filed per year.

Revenue

The amount of revenue collected by municipal courts grew97.8 percent over the last ten fiscal years (from $249,799,816 inFY 1994 to $494,194,876 in FY 2003). Excluding casesdismissed prior to or at trial, the amount of revenue collectedin FY 2003 per disposition averaged approximately $80.Although municipalities collect this revenue, a portion of it isremitted to various special funds maintained by the stategovernment.

___________________

Excerpt from FY03 Annual Report of the Office of Court Administration.

47.0 % 46.5 %

6.6 %

47.8 %44.6 %

7.6 %

47.2 % 46.1 %

6.8 %

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

State Law City Ordinance All Non-Traffic

Disposition of Non-Traffic Cases, FY 2003

Prior to Trial At Trial Dismissals - Other

Appeals Filed as a Percentage of Guilty Dispositions at Trial

0.0%

2.0%

4.0%

6.0%

8.0%

10.0%

12.0%

93 94 95 96 97 98 99 00 01 02 03

Fiscal Year

Traffic

Non-Traffic

Emergency Protective Orders Issued FY 1999 to FY 2003

0

1,000

2,000

3,0004,000

5,0006,000

7,0008,000

1999 2000 2001 2002 2003

Fiscal Year

Num

ber

of O

rder

s Iss

ued

Total Revenue CollectedFY 1994 to FY 2003

$0

$100

$200

$300

$400

$500

$600

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003

Millions

Fiscal Year

Rev

enue

B


(Excerpt from 2003 AnnualReport of the OCA.)


thousands of dollars worth ofunposted receipts, numerous postingerrors, and approximately $6,650.00 inmissing funds. These audit findingsindicated that similar findings andrecommendations had been made to thejudge on numerous occasions in thepast. Further, it was determined that thejudge failed to file monthly activityreports with the Office of CourtAdministration (OCA) since 2001,despite receiving notices that the reportswere overdue. A follow-up auditreflected that receipts still were notbeing immediately given when paymentwas tendered, even after the judgebecame aware of the Commission’sinvestigation. The Commissionconcluded that the judge persistentlyfailed to maintain and monitor his civilcourt docket, and had failed to properlyaccount for and deposit moniescollected by his court and to timely filewith OCA the required monthly activityreports. The judge’s persistent failure tocomply with statutory requirements inthe Local Government Code, the Codeof Criminal Procedure, and theGovernment Code was clearlyinconsistent with the properperformance of his duties. [Violation ofArticle V, Section 1-a(6)A, TexasConstitution and Canon 2A, TexasCode of Judicial Conduct.] PublicAdmonition and Order of AdditionalEducation of Justice of the Peace Juan Jasso(08/25/03).

• While traveling on a state highway atnighttime with his family, the judgechased, stopped, and arrested anothermotorist, based on the judge’sperception that the motorist hadcommitted a traffic offense, therebypresenting a danger to the judge andother motorists. During the incident, thejudge displayed a handgun for which hewas not licensed to possess. TheCommission concluded that the judgeengaged in “willful or persistent conductthat is clearly inconsistent with theproper performance of his duties orcasts public discredit upon the judiciary

Judicial Conduct continued from page 15 or the administration of justice.”[Violation of Article V, Section 1-a(6)A,Texas Constitution.] Private Warning of aJustice of the Peace (8/7/03).

• In one matter, a driver attempted toresolve a traffic ticket in the judge’scourt by entering a plea of no contestwith a request for deferred adjudication,and by paying the requisite fine and feesto the court. Over the next threemonths, the driver’s mother contactedthe court numerous times to find outthe status of her son’s ticket; each timeshe learned that the case was still open.Eventually, the driver’s paperwork wasprocessed correctly. In another matter,the commissioners’ court of the judge’scounty complained that the judgeengaged in fiscal mismanagement byfailing to fulfill his statutory obligationto deposit monies as required by theLocal Government Code and the Codeof Criminal Procedure. A countyauditor’s report showed that the judge’scourt had thousands of dollars worth ofun-posted receipts, thousands ofunprocessed citations, late deposits, andreceipts that did not match funds onhand. Further, the audit indicated thatthe court had not implemented a planof action to correct similar problemscited in earlier audits. It was alsodetermined that for more than twoyears, the judge had failed to filerequisite monthly activity reports withthe Office of Court Administration,contrary to the Government Code anddespite receiving several notices that thereports were overdue. The Commissionacknowledged that a subsequent auditfound that the judge had madesubstantial progress in addressing theshortcomings found by the initial audit.[Violation of Article 5, Section 1-a(6)A,Texas Constitution, and Canon 2A,Texas Code of Judicial Conduct.] PrivateWarning of a Justice of the Peace (08/25/03).

• The judge requested and received anumber of pre-signed “MarriageWaivers” from a retired district judge.Exercising his discretion, the judgethereafter executed these documents in

order to allow couples to waive the 72-hour waiting period as provided bySection 2.204 of the Texas FamilyCode. There is no provision of lawwhich allows a justice of the peace toexecute a marriage waiver. The judgeexecuted the marriage waivers withoutlegal authority. [Violation of Canon 2Aof the Texas Code of JudicialConduct.] Private Admonition of a Justiceof the Peace (08/07/03)._____________________

Adapted from 2003 Annual Report of StateCommission on Judicial Conduct, pages 23-28.Includes several additional summaries provided bythe Commission. The entire Annual Report willbe included in TMCEC course materials and isavailable at www.scjc.state.tx.us.

precludes those persons fromfurnishing a list of attorneys or bailbond sureties

The statute regulating bail bond suretiesprohibits: (1) a bail bond surety fromrecommending an attorney or law firm tothe surety’s client, and (2) various publicofficers and employees of the jail andcourt systems from recommending aparticular bail bond surety to anotherperson. These provisions prohibit theaffected persons from making anyrecommendations of attorneys, law firms,or bail bond sureties.

GA-101 (9/12/2003)

Whether a sheriff may contractpersonally to provide security to aprivate entity

The sheriff may not enter into a contractwhich would oblige him to providesecurity services at the behest of, andsolely to, a private apartment complex. Byits terms, Section 351.061 of the LocalGovernment Code gives contractingauthority to the commissioners’ court, notthe sheriff. The statute here follows theordinary rule that “the general power tomake contracts binding upon the countybelongs to the commissioners’ court.”Tex. Att’y Gen. Op. No. JC-0214 (2000) at7. The sheriff, insofar as he is sheriff, isgiven no authority to enter into such acontract by Section 351.061.

B

B

A.G. Opinions continued from page 11


One question I always askedthroughout my years with the Centeris, “Has your judge talked to youabout the Code of Judicial Conduct?”Sadly, I have only had a handful ofclerks and court administrators whoreplied, “Yes.” During the TMCECEthics class, I go over the Code ofJudicial Conduct so that clerksunderstand that judges should beholding them to the same“…standards of fidelity and diligencethat apply to the judge… .” See theserequirements in Canon 3C(2). Hence,the clerks’ actions and conduct couldsubject the judge to a complaint andsanctions. At the end of the class, Iask the clerks, “How important is itthat clerks and administrators knowand understand the Canons in theCode of Judicial Conduct?” They allrespond, “Very important.”

Although many judges do notsupervise the day-to-day activities ofclerks, they do have responsibility forsome oversight of the court. TheCode of Judicial Conduct requiresjudges in Canon 3C(1) to “…maintainprofessional competence in judicialadministration and…[to] cooperatewith other judges and court officials inthe administration of court business.”Therefore, clerks and judges shouldwork together as a team to ensure thatcourt business is conducted effectivelyand efficiently as required by Canon3B(9). That Canon requires judges todispose of all judicial matterspromptly, efficiently, and fairly.Without clerks taking care of the day-to-day business of the court, judgeswould not be able to conduct judicialmatters as required by Canon 3B(9).

In the General Counsel’s column in thisnewsletter, Clay Abbott notes severalpublic remands given to judges whohave violated the Canons of the Codeof Judicial Conduct. Recently, theCommission has sanctioned judges forracially offensive language and rude anddiscourteous behavior. Canon 3B(5)and (6). Subsection (6) also requiresjudges to “…not knowingly permitstaff, court officials, and others subjectto the judge’s direction and control todo so [manifest bias or prejudice].”This means that judges should talk toclerks about how to communicate todefendants and others that come tocourt or call on the telephone forinformation.

Canon 3B(4) requires judges to “…bepatient, dignified, and courteous tolitigants… .” The Canon also requiresclerks to conduct themselves in thesame manner. Clerks see moredefendants than judges do. At the endof a long and frustrating day, clerksmust still be patient, dignified, andcourteous.

The Commission on Judicial Conductreprimanded a judge for failing to,“dispose of all judicial matterspromptly, efficiently, and fairly.” Thejudge used the excuse that the chiefclerk quit and left a “big mess.” TheCommission on Judicial Conduct,however, still reprimanded the judge.The consequences of a clerk notproperly handling court records and ajudge not overseeing the clerk and therecords, as can be seen by thisreprimand, caused a judge to besanctioned. Consequently, clerks shouldtake great care of court records by

making sure that all deadlines andtimelines are being monitored and thatcases are moving through the systemin a timely manner. Court clerks arethe custodian of court records andhave a responsibility to the judge,defendants, and others that come intocourt to properly handle court records.The result of not doing so wouldprobably mean chaos in court anddefendants not treated fairly.

Even though many judges have notbeen diligent in discussing the Code ofJudicial Conduct with their courtclerks and administrators, the clerksshould read and understand the Codeof Judicial Conduct. If the clerk oradministrator is a supervisor, everyemployee under his or her supervisionshould be required to read the Codeof Judicial Conduct and sign that theyhave read it and understand it. Clerksand administrators should periodicallydiscuss ethics and the judicial canonsas a reminder of their professionalresponsibility to the court.

I have found that clerks andadministrators take to heart what theylearn at TMCEC classes. Theirprofessional responsibility is alsodemonstrated by the fact that manyclerks have become certified or areworking on becoming certified underthe Municipal Court ClerksCertification Program. Hooray for allour professional clerks andadministrators!

CLERK’S CORNER

Read and Discuss the Canons!By Margaret Robbins, Program Director, TMCEC

CLER

KCORNER

B


COLLECTIONS CORNER

Amnesty 2004By Don McKinley, Assistant Collections Specialist, Office of Court Administration

Amnesty continued on page 28

Hope everyone survived the holidayseason! It’s hard to believe 2004 isalready upon us. Some of us may takea shot at another New Year’sresolution, whether it is losing weight,reading more, taking up a new hobby,or maybe even improving collections.Now that you have had a good laugh,why not start off the year with a newfocus on your court’s collectionseffort? You may consider an amnestyprogram or a warrant roundupcampaign during the year. Bothamnesty and warrant roundups havesimilar goals, which include thefollowing:

• disposing of outstanding cases;

• increasing court revenues;

• clearing outstanding warrants; and,most importantly,

• increasing compliance with the lawand orders of the court.

Amnesty is defined by Webster’s as theact of an authority (as a government) bywhich pardon is granted to a large group ofindividuals. Amnesty programs generallyoffer one or both of two forms ofincentives: 1) a freedom incentive and2) a financial incentive.

If you are considering an amnestyprogram for your court, take amoment to remember the messagethat may be inadvertently conveyed todefendants/offenders in yourcommunity. (We all know how the“word” gets out on the street). Themessage usually conveyed by anamnesty program is, “We have afinancial deal for you—come on in tocourt.” Does amnesty work? You bet.However, a question can be raised:

why should we offer any financialincentive? Most defendants/offendersbeing targeted haven’t paid their fines,fees, and court costs, so why shouldwe cut them a deal or reward them fornot handling their obligations?Actually, in cutting a deal, you just mayhamper your future collection efforts,and the defendants/offenders maydevelop the mentality of waiting fornext year’s deal and amnesty.

So, is there a better way? We believethat a well-publicized warrant roundupcampaign is a better alternative.Experience has shown that acoordinated warrant roundupcampaign will prove to be moresuccessful. It meets all the same goalslisted above, and offers no financialincentive or give away. It maintains theeffectiveness of the warrant as anenforcement tool for your court.

In July 2003, the City of Beaumontconducted its first warrant roundupcampaign with great success. DeannaDavis, the court administrator,reported that court revenue for themonth of July was $257,000, whencompared to the average July revenueof approximately $90,000. Thisrepresented a 250% increase inrevenue for the month. But it is notjust about revenue. The main issue iscompliance with orders of the courtand respect for the justice system inyour community. There is a clearmessage in the Beaumont area thatwarrants will be enforced andcompliance with court orders isexpected.

The City of Austin has held successfulannual warrant roundups for the pastthree years. Rebecca Stark, the clerk of

the Austin court, has been veryproactive in the coordination ofroundups and mass mailing campaigns(i.e., sending warrant notices todefendants). Last year, the City ofAustin was joined by 21 other entities,including the City of San Antonio. Theannual warrant roundup campaigncovered an area from Killeen to SanAntonio along the I-35 corridor.Austin Municipal Court increased itsrevenue by approximately $750,000during the roundup campaign month— the equivalent of an extra monthof revenue for the court. In all,approximately $2.75 million inadditional revenue has been collectedfrom the roundups during the pastthree years. This year’s campaign willalso include the City of Temple andpossibly Waco.

Both Ms. Stark and Ms. Davis statethat the use of local media is crucial toa successful campaign. Local radiostations, newspapers, and televisionpress coverage is key. You should usethe media in smaller surrounding citiesand, if you include surroundingcommunities and criminal justiceagencies, your roundup becomes abigger story. You may also be able touse your local cable bulletin board.

When planning a warrant roundup, itis important to get all parties involvedand participating. Include local lawenforcement — police department,sheriff, city marshal, county constable,and warrant officers. Input andsupport from your judges is veryimportant. Be careful in selecting adate to kick off the roundupcampaign. Based on experience, many


COURT SECURITY

Article 102.017, Municipal CourtBuilding Security Fund, allowsmunicipalities, if an ordinance isadopted, to collect a fee of $3.00 as acourt cost from anyone convicted of amisdemeanor offense and spend thesemonies on court security.

More specifically, the Article states thatthe funds may be used to finance itemsused for providing services forbuildings housing a municipal court asappropriate, including:

• purchase or repair X-ray machinesand conveying systems;

• handheld metal detectors;

• walkthrough metal detectors;

• identification cards and systems;

• electronic locking and surveillanceequipment;

• security personnel, includingcontracted;

• signs;

• confiscated weapon inventory andtracking systems;

• locks, chains, or other securityhardware;

• purchase or repair bulletproof glass;and

• continuing education on securityissues.

It is important to note the use of theterm “including.” As defined by theCode Construction Act (Chapter 311,G.C.), “including” is a term ofenlargement and not of limitations,which broadens the possibilities ofwhat courts may purchase.Caveat: Document all court security

Municipal Court Building Security Fund RevisitedBy Jo Dale Bearden, Program Coordinator, TMCEC

fund purchases that are not listed inArticle 102.017 or any purchase thatcollaterally benefits other departmentswithin the city.

The Article goes on to state that themonies collected must be depositedinto the municipal court buildingsecurity fund. The term “fund” denotesthat it has its own assets, liabilities, andequity accounts. Therefore, the moneycollected may not be combined with thegeneral fund.

In a perfect world, all of the above takeplace as the legislature intended. Citycouncils pass the ordinance, municipalcourts collect the fee, the city depositsthe monies into the court security fund,and the court spends the monies onmuch needed security equipment. Herein the real world, however, many courtsare not collecting the fee, money fromthe fund is spent on non-court securityrelated items, or money from the fundis not spent at all. What do you do ifyour court lives in the real world?

Scenario One:

The court is not collecting the feebecause the city council will not passthe ordinance to collect the courtsecurity fund.

Why will the city council not pass theordinance? The most common answerfrom courts is the city council does notwant to add an additional fee on top ofstatutorily required court costs and fees.What they probably have notconsidered are the added benefits of asafe and secure court. Court employees(and possibly other city employees, ifeveryone is housed in the samebuilding) produce a better work product

if they feel safe and secure in theirworkspace. A municipal court has anobligation to provide a safeenvironment not only to its employees,but also to the members of the publicwho visit the court. A secure municipalcourt sends a strong message to thecommunity and the defendants that thecity takes the judicial function seriously,most likely resulting in higher collectionrates. If the court security fee is notcollected, the cities may be spendingmoney on security out of the generalfund—money that could be spent onother city needs. Lastly, security notonly protects persons, it protects assets(money and property).

Scenario Two:

The court is collecting the fee, but themonies are being spent on non-courtsecurity related items.

Unfortunately, courts must also beaware of the politics that play out in thecity environment and this scenario canturn venomous. Each court shoulddecide how far they want to push thisissue, keeping in mind that the courtbudget is always on trial. However,there are some options. Start withbasics, present a copy of Article102.017, C.C.P., to the cityadministration or request a writtenopinion from the city attorneyregarding the Article. Request that thetopic be discussed at the next citycouncil meeting (getting it on therecord, in the minutes).

Scenario Three:

The court is collecting the fee, but themonies are not being spent.


Dates School Hotel/City Address & Telephone

1/27-28/04 12-Hour Low Volume Judges/Clerks La Posada Laredo 1000 Zaragoza Street 78040956/722-1701

2/3-4/04 Court Administrators/ San Luis Resort & Conference 5222 Seawall Boulevard 77551Bailiffs and Warrant Officers Center Galveston 409/744-1500

2/19-20/04 12-Hour Regional Judges/Clerks Doubletree Lincoln Centre Dallas 5410 LBJ Freeway 75240972/934-8400

2/25-27/04 Level III Clerk Certification San Marcos Holiday Inn Select/ 108 IH35 North 78666Assessment Clinic Aquarena Springs Meeting Center 512/754-6621

3/10-11/04 12-Hour Low Volume Judges/Clerks The Fredonia Hotel Nacogdoches 200 N. Fredonia Street 75961936/564-1234

3/24-25/04 12-Hour Regional Judges/Clerks Sofitel Houston 425 N. Sam Houston Pkwy 77060281/445-9000

4/7-8/04 12-Hour Regional Judges/Clerks Ambassador Hotel Amarillo 3100 I-40 West 79102806/358-6161

5/4-5/04 12-Hour Prosecutors Radisson Resort South Padre Island 500 Padre Blvd. 78597956/761-6511

5/6-7/04 12-Hour Clerks Radisson Resort South Padre Island 500 Padre Blvd. 78597956/761-6511

5/10-11/04 12-Hour Attorney Judges Radisson Resort South Padre Island 500 Padre Blvd. 78597956/761-6511

5/12-13/04 12-Hour Non-Attorney Judges Radisson Resort South Padre Island 500 Padre Blvd. 78597956/761-6511

6/15-16/04 Special Topics Judges (Magistrate)/ Hyatt Regency Austin 208 Barton Springs 78704Court Administrators 512/477-1234

6/24-25/04 Bailiffs and Warrant Officers Inn of the Hills Kerrville 1001 Junction Highway 78028830/895-5000

7/6-7/04 12-Hour Regional Judges/Clerks Camino Real El Paso 101 S. El Paso Street 79901915/534-3000

7/19-23/04 32-Hour New Judges/Clerks Lakeway Inn Austin 101 Lakeway Drive 78734512/261-6600

7/30-8/1/04 Level III Clerk Certification Doubletree Dallas 8250 North Central Exprsway 75206Assessment Clinic Campbell Centre 214/691-8700

TMCEC FY04 Academic Calendar

Again—a safe and secure court is ahappy court. If this is your real world,remind those who hold the pursestrings that the statute was created toprovide money for court security sothat the general fund is not used forsecurity equipment. Discuss with themall of the benefits of having a safe andsecure court. Have an outside partycome in and do a security evaluation.Present that to those who determine

the fate of court security with a plan ofaction. Most importantly, be persistent.

The intent of the municipal courtbuilding security fund is to providefunding for court security. Apparently,the legislature felt that municipal courtsshould prevent, as much as possible, thetragedies that some courts haveexperienced. In that, encourage your cityto live in that perfect world where the

city council passes the ordinance,municipal courts collect the fee, the citydeposits the monies into the courtsecurity fund, and the court spends themonies on much needed securityequipment._______________

Special thanks to Rene Henry, Project Manager, Officeof Court Administration for his contributions to thisarticle.

Wait List

Wait List

B


TMCEC 2003-2004 REGISTRATION FORM

Program Attending: ________________________________ Program Dates: _____________________________ [city]

r I will attend the pre-conference class on Bond Forfeitures. r I will attend the New Prosecutor Trial Advocacy track at the Prosecutor Skills Seminar.

r Judge r Clerk r Court Administrator r Bailiff/Warrant Officer* r Prosecutor

TMCEC computer data is updated from the information you provide. Please print legibly and fill out form completely.

Last Name: _______________________________ First Name: _____________________________ MI: ________Names also known by: ______________________________________________ Male/Female: ______________Position held: __________________________________________________________________________________Date Appointed/Elected/Hired: _____________________________________ Years Experience: ________________Emergency Contact: ___________________________________________________________________________

HOUSING INFORMATIONTMCEC will make all hotel reservations from the information you provide on this form. TMCEC will pay for a single occupancyroom at all seminars: four nights at the 32-hour seminars and two nights at the 12-hour seminars. To share with another seminarparticipant, you must indicate that person’s name on this form.

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

_______________________________________________ (Room will have 2 double beds.)r 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: r 1 king bed r 2 double bedsr I do not need a room at the seminar.

Date arriving: ____________________ Arriving by: r Car r Airplane r Smoker r Non-Smoker

COURT MAILING ADDRESSIt is TMCEC’s policy to mail all correspondence directly to the court address.

Municipal Court of: _________________________ Mailing Address: _______________________________________________City: _____________________________________ Zip Code: ___________________ Email: ________________________Office Telephone #: _________________________ Court #: _________________________ FAX #: ____________________Primary City Served: _________________________ Other Cities Served: ____________________________________________

r Attorney r Non-Attorney r Full Time r Part Time

Status: r Presiding Judge r Associate/Alternate Judge r Justice of the Peace r Mayorr Court Clerk r Deputy Clerk r Court Administrator r Bailiff/Warrant Officer*r Prosecutorr Assessment Clinic (A registration fee of $100 must accompany registration form.)r Other: ______________________________________________

*Warrant Officers/Bailiffs: Municipal judge’s signature required to attend Bailiff/Warrant Officers program:

Judge’s Signature _______________________________________ Date: ___________________________Municipal Court of ________________________________________________________________________

I certify that I am currently serving as a municipal judge, city prosecutor, or court support personnel in the State of Texas. I agree that I will be responsible for any costsincurred if I do not cancel five (5) working days prior to the seminar. If I have requested a room, I certify that I live at least 30 miles from the seminar site and have readthe cancellation and no show policies in the General Seminar Information section located on pages 16-17 in the Academic Schedule. Payment is required ONLY for theassessment clinics; payment is due with registration form. Participants in the assessment clinics must cancel in writing two weeks prior to seminar to receive refund.

_____________________________________________________ __________________________ Participant Signature Date


TEXAS MUNICIPAL COURTSEDUCATION CENTER

1609 SHOAL CREEK BLVD., SUITE 302AUSTIN, TX 78701www.tmcec.com

TMCEC MISSIONSTATEMENT

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

Change Service Requested

Amnesty continued from page 24

courts use the first Saturday in March,just as tax refunds are being mailedout and students are heading off onspring break. You should also releaseyour warrant roundup kickoff date tothe press about 2-4 weeks prior toyour kickoff date. This will establish adeadline, generate interest, and serveas advance notice of the event to thecommunity.

If you have an outside collectionsvendor, they will most likely want tobe included and involved and send outtheir own letters. The court shouldalso consider a mass mailing in whicha special warrant roundup notice ismailed out to defendants withoutstanding warrants. This noticeshould be different in color, design,wording, or tone from any othernotices sent by the court to garnerattention from the offender. Alongwith the impact of your press releaseand media attention, you may alsowant to include a telephone campaignto offenders with outstandingwarrants in the weeks leading up to

your warrant roundup.

Ms. Stark suggested there may beadditional items you need to addresswith your warrant roundup, including:

• staff compensation for additionalhours worked;

• press and media control; and

• higher attention and activity.

Be prepared for press questions aboutthe number of cases you expect toclose, how much money you expect tocollect from the campaign, the numberof total warrants outstanding, thenumber of arrests to be made by lawenforcement, and the age of the casesoutstanding. You may wish to stayvague on some of your answers,especially if you are conducting yourfirst warrant roundup campaign.

Be prepared to have some fun. Aneffective, well-coordinated warrantroundup will generate additionalrevenue and workload for your court.The telephone calls, customer traffic,mail processed, and mail received byyour court will all increase dramatically,

especially in the final days leading upto the event. You may experiencesome internal teambuilding as staffmembers work close together to getthe job done, and don’t forget toreward them after the campaign with apizza party or some other surprise fora job well done.

This may be the resolution you arelooking for in 2004. If you would likeadditional information you maycontact Deanna Davis, Rebecca Stark,and the Office of CourtAdministration at the telephonenumbers listed below. Best wishes fora successful 2004!B

Don McKinley, OCA-AssistantCollections Specialist 512/936-7557

Jim Lehman, OCA-CollectionsSpecialist 512/936-0991

Russ Duncan, OCA-AssistantCollections Specialist 512/936-7555

Deanna Davis, Court Administrator -City of Beaumont 409/833-0555

Rebecca Stark, Clerk of the Court -City of Austin 512/974-4690

federal and state case law update recorder/2004/nl_0104.pdf · persons of the same sex from...

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