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The Texas Criminal Justice System
This section focuses specifically on the criminal justice system in the state of
Texas.
This takes us through several steps in the governing process. The entire criminal justice system involves all
three branches of government.
Law creationLaw Enforcement
ProsecutionTrials
AppealsPunishment
Paroles
Types of laws
CivilCriminal
MisdemeanorsFelonies
Sources of law:
Statutes passed by the state legislature
Provisions of the Texas Constitution
Common Law
Every time the Texas Legislature meets it passes a variety of new statutes which make new things
illegal to do.
These come into effect – generally – September 1st following the end
of the session.
Here are reports about the most recent laws passed in the 82nd
session:
Criminal Law BlogKXII.com
Texas District and County Attorneys
Grits for Breakfast
Public opinion on certain things can change.
Marijuana use for example. But change in public opinion does not
necessarily lead to changes in public policy.
From 2009, a list of 2,436 total felonies – also ranked according to severity.
Grits for Breakfast comments on the exploding number of felonies in Texas.
Discussion: Do we make too many things illegal? What pressures does this place on the state? Are there
other ways to address public problems?
All Texas laws are contained in Vernon’s Texas Statutes and Codes
.
Click here for (what seems to be) a comprehensive set of
links to Texas Codes and laws.
More discussion:
What factors make some things illegal and other things not? Do
law enforcement agencies promote expanded criminal law? Does this allow additional means to control the general population.
One problematic issue: It can take awhile for people to realize that laws have changed for certain
activities.
Cities can also pass ordinances which do the same thing
Recent local example: Is giving food away a crime in Houston?
And is Houston going to change its chicken laws?
So with very few exceptions, the decision about what people can
and cannot do comes own to decisions made in the legislative
branch, and this is often as a consequence of efforts to
criminalize certain activities.
It is up to the executive branch to enforce the laws.
Investigation and prosecution.
The law enforcement system in the state is highly decentralized. While
state institutions exist – notably The Texas Department of Public Safety – these share power with 254 sheriff’s
department in each of the counties in the state, and the police departments in each of the over 1,200 incorporated
municipalities.
This doesn’t even take into consideration the fact that Texas
law enforcement exists within the larger frame of law enforcement in
the nation as a whole.
The DPS consists “of the director's staff and three major divisions:
Criminal Law Enforcement, Traffic Law Enforcement, and
Administration.”
Texas Tribune Topic: Steve McGraw
The DPS is overseen by a five person board – the Public Safety Commission - appointed by the governor and confirmed by the
Texas Senate for six year, staggered terms.
The Texas Rangers (Wikipedia, TSHA) are also a division within the
DPS. The division dates back to 1823, so it considerably older than
DPS – and Texas itself.
Texas laws are also enforced by sheriffs. The Texas Constitution
establishes that each county is to have an elected sheriff who is to
serve for four years.
“By statutes, the Sheriff is a Texas peace officer, a conservator of the
peace, enforces the criminal laws of the State, and is responsible for the county jail, bail bonds, civil process, and security of the courts. In some
small counties the Sheriff is also the tax collector.“ – S.A.T. website.
Brazoria County Sheriff’s OfficeHarris County Sheriff’s Office
Sheriff’s Association of Texas
County law enforcement is also augmented by constables. Each
county can have from one to eight and they are elected to serve in a
precinct within the county.
Brazoria County ConstablesHarris County Constables
Constitutional authorization comes from Article 5 – Section 15 of the
Texas Constitution.
Cities also have their own law enforcement mechanisms – police
forces.
Its worth noting that professional policing only began in the late
1820s. Police forces had a history of sources of patronage.
Alvin Police DepartmentHouston Police Department
Remember that the activities of the police are limited by the various elements that we know collectively as the “due process
of the law.”
Parts of the U.S. and Texas Bills of Rights are intended to limit the discretionary
activities of the police. Actions are not to be motivated by racial or ethic bias, but by
probably cause.
Important parts of each Constitution: U.S. Constitution 4th Amendment, which is applied to
state and local forces through the 14th Amendment; Texas Constitution, Section 9.
Criminal investigations begin with police forces. Once evidence of
criminal activity is found, further investigations and prosecution is
handed over to the lawyers.
Their activities are also contained by due process requirements in both the
U.S. and Texas Constitutions.
Problem:
How reliable are police crime labs? Are they biased in favor of the
police or are they independent?
The Houston Crime Lab was found to tailor tests to theories.
A similar problem exists with how eyewitness testimony is treated.
How to Obtain a Warrant
Prior to trial, arresting officers sometimes have to face a probable
cause hearing where it can be determined that an arrest, or the acquisition of evidence, was legal.
Click here for a thorough discussion of probable cause hearings.
Some Light Reading: Texas Search and Seizure
A bit less extensive: The Criminal Process: How it
WorksTexas Criminal Procedures
And in case you need it:
Your Rights During a Traffic StopKnow Your Rights When Dealing With Police
Officers Ticket Assassin
Police Traffic Stops and Vehicle Searches: FAQs
While awaiting trial, the accused can either be set free on bail, or
held in a city or county jail.
The top lawyer – chief legal officer - in the state is the Attorney
General (Wikipedia, TSHA), who is elected independently to four year
terms.
Each county also elects it own District Attorney and hires a number of assistant district attorneys and prosecutors.
Harris County District AttorneyTDCAA
TAC
Harris County also has an attorney who represents the county in legal matters the county is involved in as
a litigant. This person is not a prosecutor.
Cities also have their own legal departments headed by a city
attorney.
Alvin Legal DepartmentHouston Legal Department
Click here for an overview of the legal process after it is handed
from the police to the prosecutors as described by an assistant district
attorney in Travis County.
Before discussing this, here’s a reminder that there are several
types of criminal trial courts in the state, each with their own
jurisdiction.
Click here for the basic court structure in Texas.
Prosecutors are assigned to each of the District and County Courts
(click here for the Brazoria County Courts and here for the Harris
County Courts).
At the bottom are two types of local trial courts: (1) Justice of the
Peace courts an (2) Municipal Courts.
Justice of the Peace Courts are presided over by judges who need no qualifications
and are voted into office in partisan elections and decide cases involving civil
actions of less than $10,000, criminal misdemeanors punishable by fines, and
can perform magistrate functions, such as marriages and issuing warrants. The JP serves in precincts drawn by the county
court.
They serve as small claims courts, which provides an informal, inexpensive way to resolve disputes of $10,000 or less.
Click here for:
Brazoria County Justice of the PeaceHarris County Justice of the Peace
Municipal Courts are established and controlled by cities in means
established in city charters. They have jurisdiction over criminal
misdemeanors, municipal ordinance criminal cases, some civil cases and
they have magistrate functions as well. They are appointed or elected as established in the city charter.
Click here for:
Alvin Municipal CourtsHouston Municipal Courts
The next level up includes County Court of Limited Jurisdiction.
There are three types
Constitutional County Courts exist in each county in the state, and are elected to 4 year terms in partisan
county wide elections. They can serve as court of original
jurisdiction for misdemeanor cases or an appellate court for justice of
the peace or municipal courts.
This court is presided over by the county judge, but they must take
approved courses so they are qualified to do so.
Statutory County Courts at Law are created in large counties where a
singe constitutional court is insufficient. They have the same
jurisdiction as constitutional county courts, as well as civil
matters up to $100,000.
Statutory Probate Courts also exist in the larger counties in order to help the Constitutional County
Court with cases involving guardianship, competency and
wills.
The next step up from county level courts are District Courts. These are state trial
courts of general and special jurisdiction. They handle felonies, as well as civil
matters, divorce, land titled and contested elections. Most counties have one court.
Judges are elected in partisan district wide election to 4 year terms. The governor can
fill unexpired terms with the advice and consent of the Senate.
Harris County CourtsBrazoria County Courts
Click here for additional information about county courts
from www.county.org.
Above these courts are the Courts of Appeal and the Texas Court of Criminal Appeals and the Texas Supreme Court.
More on this process later.
But let’s go back to the process in a felony trial, which we now know happens in state district courts.
For data about various aspects of the Texas Judiciary click here for
the 2011 Annual Report
When a felony charge is filed by the police, the case file is sent to
the district attorney’s office and an assistant district attorney is
assigned to the case who reviews it and prepares it for presentation to
a grand jury.
What is a Grand Jury?
A grand jury consists of twelve people whose job is to review criminal
complaints and decide if there is sufficient evidence to issue an
indictment. The standard of proof for an indictment is probable cause. –
website: Harris County District Courts.
The Fifth Amendment of the U.S. Constitution states that no one can be sent to trial unless a grand jury indicts them, but this has not been
incorporated to the states.
Grand juries (TSHA) serve to ensure that a check exists on the
ability of government to take anyone to trial that they choose, but allegations exist that grand
juries fall short of that goal.
"a grand jury would 'indict a ham sandwich,' if that's what you
wanted.“ - Sol Wachtler
Prior to this – or at any time afterwards – the prosecutor and the
defense attorney can settle.
When they do, this is called a plea bargain, and the vast majority of
criminal cases – perhaps 95% - are plea bargained rather than hear
before a jury.
If a grand jury issues an indictment, then a criminal defendant is arraigned, which means that they stand before a judge and enter a plea of guilty, not
guilty or no contest.
All 6th Amendment constitutional protections are then in place, including
the right to an attorney.
Since I brought up the right to an attorney, a word or two is necessary about them.
The judiciary is unique in that it restricts participation to individuals it judges
qualified to argue before it. While it is true that anyone can defend themselves if they choose, only a licensed attorney who is a
member of the State Bar of Texas can argue cases for others before the court.
Should You Represent Yourself in Court?
Probably not . . .
Also important is the American Bar Association, which licenses law schools, and the Texas Board of
Law Examiners – the members of which are appointed by the Texas Supreme Court – which supervises
the bar exam.
In Gideon v Wainwright, the right to counsel was interpreted to mean a guarantee to counsel. This can be difficult for poor defendants, since
they can seldom afford a competent attorney. The Legal Services
Corporation was created in order to provide legal representation for those
who cannot afford it.
Local Public Defender’s Offices
Federal Public DefenderHarris County Public Defender
There are still controversies about what guarantees should exist for
people to receive competent representation. Not all lawyers are
good lawyers.
If there is no plea bargain, then – unless the defendant is willing to have the case decided before a judge – a jury is summoned for
trial.
As we know, the right to trials by jury go back to Magna Carta and
before. Of all governing institutions the jury is the only one that most citizens can be almost guaranteed
to serve on.
But few people are happy about it.
The right to jury trials is established in two separate places in the U.S. Constitution, as well as
the Texas Constitution.
For additional info: uslegal.com: Jury System
For relevant local information
Alvin Jury InformationHouston Jury Information
Brazoria County Jury ServicesHarris County Juror Services
US Courts: Jury Service.
The most essential requirement is that a jury be impartial. The job of the judge is to ensure that is the
case.
From Wikipedia:Jury, Juries in the United States, and Jury
Selection.
Texas Center for the JudiciaryTexas Justice Court Judges Association
Texas Judicial Foundation
Since trials are conducted most days, jurors are assembled on a
regular basis by the County District Clerk in order to be available to
serve if needed in any of the courts.
“If you are a registered voter, have a Texas driver's license or Texas
personal identification card, your name is entered in a computer system
designed to randomly select prospective jurors.” – American Juror.
Exceptions exist for who can serve. See How Juries are Selected and The Trial
Process in Texas: Jury Selection
Most days people with jury summons form that day’s Jury Pool. These are prospective jurors. They gather in a
Jury Assemble room.
They will be divided into Jury Panels and assigned to different court rooms.
In Harris County, 60 people are selected for each jury panel.
These 60 then go through voir dire, where lawyers on either side of the
case ask questions of panelists in order to determine if they wish to strike anyone from the jury that
believe may be biased against their side.
After voi dire, the petite jury is selected and they begin the process of
hearing the case. These generally consist of 12 people and they are
given the task of determining – within applicable law – whether a defendant is guilty of a crime, or liable for a civil
violation.
Controversy:
Jury Nullification
Jury Nullification occurs when a jury does not rule on whether a
defendant is guilty of a crime, but whether the law making the act a
crime is legitimate.
Judges tend to not like jury nullification.
In criminal trials, the burden of proof is on the prosecution – there is a
presumption of innocence. A defendant must be proven guilty. If
not they are acquitted – which doesn’t mean that they are innocent, just that the burden of proof was not meant –
A unanimous decisions of guilt beyond a reasonable doubt.
As we know already – if there are procedural irregularities in the
trial, meaning some violation of due process, or conviction of
violating a law that was judged unconstitutional – a guilty verdict
can be appealed.
In Texas this process begins with the Court of Appeals and can then go to the Texas Court of Criminal Appeals or the Supreme Court.
After that, the case could end up in the U.S. Supreme Court.
Of interest:
Texas Appellate Law Blog
If not, the defendant – now termed an offender – is sentenced.
Sentencing guidelines in the stateThe Sentencing Process
Sentencing Law and Policy
Death Penalty Sentences create unique problems in the state
Should the state take extra precautions to ensure that those
given the death penalty are actually guilty?
The Innocence Project has found evidence that it is necessary to do
so.
Is the Death Penalty cost effective?
Once sentenced, offenders are sent to penitentiaries run by the Texas Department of Criminal Justice
(Wikipedia), which is overseen by the Texas Board of Criminal Justice.
The board has nine members who are appointed by the governor to
staggered six year terms.
Texas – as well as the United States as a whole – has a very large prison population.
Texas Tough: Fast FactsPrisoners of the Census: Texas
Texas Tribune: Texas Prison InmatesWikipedia: List of Texas Prisons
Debate:
What is the purpose of confinement? Retribution?
Rehabilitation?
Should educational opportunities be given to offenders?
Windham School District
Are prison sentences too long? What social consequences are there when fathers are removed from families for long periods of
time.
Does this perpetuate crime?
Is a prison sentence the best way to deal with certain crimes? Drug crimes
especially.
Prison Violence
How responsible is the state for violence that occurs in prisons?
Privatization
Should the state contract the running of prisons to private businesses? If it does,
will this create an incentive to throw more people in prison?
After a period of time, offenders are eligible for parole. This is
handled by the Texas Board of Pardons and Paroles (Texas
Tribune Topic)
Recidivism
Note: As of 4/17/12 these are incomplete. These slides will be
finished soon.
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