IntroductionThis is the second in a three-part series of articles describing Texas magistrates’responsibilities under the Fair Defense Act passed in 2001. The first article,published in the April-May 2005 Recorder, provided an overview of the keyactors involved in implementing the law, their responsibilities and the timelineswithin which they must act. This, the second article, describes the magistrates’ roleconducting Article 15.17 hearings. The final article will elaborate more specificallyon the issues surrounding determining indigence and assigning counsel under theFair Defense Act. This series is designed to complement trainings beingconducted statewide by the Task Force on Indigent Defense.

©2005 Texas Municipal Courts Education Center, Austin. Funded by a grant from the Court of Criminal Appeals.

VVVVVolume 14olume 14olume 14olume 14olume 14 JUNE 2005JUNE 2005JUNE 2005JUNE 2005JUNE 2005 No. 5 No. 5 No. 5 No. 5 No. 5

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

Contemporary Prosecutorial EthicalDilemmas by Ross Fischer .................. 1

Magistrate Duties by James D. Bethkeand Dottie Carmichael ....................... 1

Registration FormsLegislative Update ............................. 82006 Registration Form .................. 11

FeaturesAround the State ............................... 2Clerk’s Corner ................................... 12Collections Corner ........................... 14From the Center ................................ 7Resources for Your Court ............... 13

Contemporary Prosecutorial Ethical DilemmasBy Ross Fischer, Assistant Chief Disciplinary Counsel, State Bar of Texas

Dilemmas continued on page 3

Magistrate DutiesBy James D. Bethke, Task Force on Indigent Defense, Office of Court

Administration and Dottie Carmichael, Ph.D., Associate ResearchScientist, Public Policy Research Institute (PPRI)

Magistrate continued on page 4

What legal resources do you keep withinreach, easily accessible to the busymunicipal prosecutor or judge? TheCode of Criminal Procedure? Naturally.The Transportation Code? Of course.How about the Texas Disciplinary Rulesof Professional Conduct, which providethe ethical guidelines to which attorneysare held in our state? No? Well, it may betime to reacquaint you with thoseprinciples, in light of issues facingmunicipal courts today. (To downloadthe rules, go to www.texasbar.com.)

Municipal court prosecutors are findingthemselves at the intersection of legal andethical issues. It is important that, whileutilizing their discretion, municipal lawyersconsider the responsibilities of theirprofession. This article will consider the

ethical implications of practical scenariosfacing municipal courts.

Pretrial Distraction

The Issue. As all municipal prosecutorsand judges know by now, recentchanges in the law prohibit grantingdeferred disposition to a person whoholds a commercial driver’s license(CDL) and is accused of a trafficoffense. Defense counsel asks for“pretrial diversion” in exchange forpayment of some fine/costs/donation.Can this be done?

Ethical Obligations & Legal Constraints.The law does not authorize pretrialdiversion in municipal courts, period.Moreover, the Texas Attorney Generalhas held in two opinions that a

prosecutor cannot offer pretrialdiversion in exchange for a monetarydonation to a charitable organization.1Prosecutors should remember that theyhave an ethical duty to represent theState diligently, and that they have takenan oath to uphold the law.

Many of you have also faced a morecreative, and equally questionable, wayof dealing with CDL cases…

FTA Fraud

The Issue. By now, most municipalprosecutors have had a CDL defendant,usually through counsel, propose thefollowing: “Just dismiss the movingviolation, and we’ll happily plead guiltyand pay a fine for Failure to Appear(FTA).”

Page 2 Municipal Court Recorder June 2005

Texas Municipal CourtsEducation Center

1609 Shoal Creek Boulevard, Suite 302Austin, Texas 78701

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

Website: www.tmcec.com

Fair and Impartial Justice for All

FY05TMCA/TMCEC Officers

President: Dan Francis, RobinsonPresident-Elect: Steve Williamson, Fort Worth1st V.P.: Robert Doty, Lubbock2nd V.P.: Daniel J. Simms, HoustonSecretary: Luane Petrash, WebsterTreasurer: Robert C. Richter, Missouri CityPast-President: Sharon Hatten, Midland

DirectorsJan Matthews, Lubbock • Ninfa Mares, FortWorth • Vicki Gerhardt, New London • RobinSmith, Midland • George Bill Robinson,Yorktown • Robin A. Ramsay, Denton •Robert Barfield, Pasadena • Walter DickKettler, Beverly Hills • Donna Starkey, Alvin• Phyllis Mathison, Bastrop

Staff• Hope Lochridge, Executive Director• Ryan Kellus Turner, General Counsel• Margaret Danforth, Admin. Director• Tiffany Dowling, Program Attorney/

Deputy Counsel• Margaret Robbins, Program Director• Jo Dale Bearden, Program Coordinator• Patricia Russo, Program Assistant II• Rey Guzman, Multimedia Specialist• Beatrice Flores, Registration Coordinator• Lidia Ball, Research Assistant• Carrie Harper, Communications Assistant

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

Articles and items of interest not otherwisecopyrighted may be reprinted with attributionas follows: “Reprinted from the MunicipalCourt Recorder with permission of the TexasMunicipal Courts Education Center.”

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

AROUND THE STATE

TMCA Fall Annual MeetingThe Texas Municipal Courts Association has scheduled its Annual Meeting onSeptember 15-17, 2005 in San Antonio. The host hotel will be the St. Anthony at300 E. Travis (800/996-3426 or 210/227-4392). In addition to the annualbusiness meeting of the Association, a legislative update will be offered onchanges from the 79th Session. Participants are responsible for making andpaying for their own hotel reservations. Additional information about theconference may be obtained by writing or calling:

Hon. Robert Doty (TMCA FirstVice-President)Municipal JudgeCity of LubbockP.O. Box 2000Lubbock, TX 79457c: 806/775-2492FAX (court): 806/775-2468EMAIL: rdoty@mail.ci.lubbock.tx.us

Ethics Task ForceThe Task Force on the Code of Judicial Conduct has released its Final Report andRecommendations. The Report may be accessed on the TMCEC website(www.tmcec.com) or the State Commission on Judicial Conduct website(www.scjc.state.tx.us). A series of open meetings will be scheduled at lawschools across Texas this summer so that interested persons may comment onthe proposed changes. The dates and sites for the public hearings are:

July 11: South Texas School of Law (Houston) @ 1:30 p.m.July 21: Texas Tech Law School (Lubbock) @ 1:30 p.m.July 28: St. Mary’s University School of Law (San Antonio) @ 1:30 p.m.August 11: SMU Law School (Dallas) @ 1:30 p.m.

TMCEC hopes that municipal judges will take time to attend these importanthearings. Some of the proposed changes include judges’ involvement withcharitable organizations, fundraising, businesses, and political activity.

GCAT ConferenceThe Governmental Collectors Association of Texas (GCAT) is offering its 6th

Annual Court Collections Conference & Workshop on July 27-29, 2005 at the MarriottWaterway Resort & Conference Center in The Woodlands. See page 13 of thisnewsletter for additional information.

20+ YearsIn an earlier Recorder, TMCEC published the names of judges and court supportpersonnel who had 20 or more years working in municipal courts. We missedSharon West, a Senior Court Clerk in the Irving Municipal Court, who has beenemployed there 28 years. Congratulations, Sharon.

Hon. Robert C. Richter, Jr. (TMCATreasurer)Presiding JudgeCity of Missouri City1350 NASA Parkway, Ste. 200Houston, TX 77058o: 281/333-9229FAX: 281/333-1814EMAIL: richter333@juno.com

June 2005 Municipal Court Recorder Page 3

Ethical Obligations & Legal Constraints.The first question to ask is whether thecharge (of FTA) is supported byprobable cause. Disciplinary Rule3.09(a) prohibits prosecutors fromprosecuting charges that are notsupported by probable cause.

As for changing the nature of anoffense, the Attorney General hasstated that a court cannot enter ajudgment for a non-moving violationwhen the defendant has been chargedwith a moving violation.2 Further, theAG goes on to warn against filingcharges not supported by probablecause, and hints that prosecutors mayrun afoul of criminal laws prohibitingaggravated perjury and the tamperingwith a governmental record.

Additionally, it is important toremember that the new CDL lawshave been enacted in response tofederal recommendations. The practiceof routinely amending CDL violationsto allege some other type of offensemay raise issues of whether the court is“masking” the types of offenses beinghandled.

Who’s the Boss?

The Issue. Members of the city councilexpress displeasure with the way thecity prosecutor handles some cases. Buthey, the prosecutor doesn’t representthe city – although the city pays them,houses them, provides a court, andsupplies ordinances to enforce. Thismay become especially tricky for thoseattorneys who both prosecute inmunicipal court and advise the city oncivil matters. What ethicalconsiderations does a municipalpractitioner face in such a situation?

Ethical Obligations & Legal Constraints.The bottom line: when prosecutors setfoot in the courtroom, they representthe State of Texas. Remember therequisites of a complaint:3 it is “by theauthority of the State of Texas,” and“against the peace and dignity of theState of Texas.” A prosecutor’sresponsibility is to the State, and theprimary duty is to see that justice isdone.4 Attorneys should make their roleclear to city staff and leaders. Perhapsthe best way to defuse this situation isto try these cases, and allow the fact-finders to determine the appropriateoutcome.

In fact, setting cases for trial may be themost certain way of avoiding theseethical quandaries. By giving CDLholders the option of pleading guilty orgoing to trial, the prosecutor can avoidaltogether the creative yet questionablesolutions being proposed. Likewise, bytrying cases, prosecutors can let juriesdetermine the appropriate outcomeand sanction, freeing themselves fromany improper questioning by cityofficials.The answers to the ethical quandariesoutlined above will not always be clear.But these common scenarios haveethical, as well as practical and legal,implications for the municipal lawyer.The law rightfully empowersprosecutors and judges with a great dealof discretion; but be sure to use thatdiscretion in a manner that comportswith the professional obligations owedto our profession.The laws affecting municipal courtschange quickly, as do the strategies fordefending against them – the ethical dutyof attorneys, however, is constant._____________1 JC-0042 and JC-0119.2 AG Opinion H-1294.3 Tex. Code Crim. Pro. Art. 45.019.4 Tex. Code Crim. Pro. Art. 45.021(d).

Dilemmas continued from page 1

The Judicial Ethics Committee of the Judicial Section ofthe State Bar of Texas issues opinions on ethical issuesfaced by Texas judges. Although these are not binding onthe Judicial Conduct Commission, the reasoning of theseopinions is insightful.

A municipal judge may request an ethics opinion by writingJudge Stephen B. Ables, 216 District Court, 700 MainStreet, Kerrville, TX 78628-5386 (telephone 830/792-2290).

Ethics Opinion Number 291 (2005)

Legal Representation of Judge or Court Staff byCounty Attorney

QUESTION: Would it be a violation of the Code ofJudicial Conduct for a judge or the judge’s staff to berepresented by the county attorney in court proceedingswherein the judge and/or the court staff have been sued in

Recent Ethics Opinionstheir official capacity, even though the judge presides overcases in which the county attorney, or an assistant countyattorney, represents the State in mental health and indigentguardianship matters, and the county in various areas of civillitigation involving its various departments, agencies andprograms?

ANSWER: No. The Committee expresses no opinionconcerning the legality of any given type of legalrepresentation. Legal representation by the county attorney isestablished by the Constitution and laws of the State ofTexas. Assuming that a given type of representation isauthorized by law, and further that there are no other factspresent that would otherwise require recusal ordisqualification under Canon 3(B)(1), the Committee is ofthe opinion that the judge can be represented by the countyattorney and continue to preside over other matters in whichthe county attorney is appearing as legal counsel.

Page 4 Municipal Court Recorder June 2005

Magistrates Duties

Texas law requires that any individualdetained in custody be given anopportunity to appear before amagistrate promptly after arrest.Guidelines for this post-arrestproceeding, informally referred to asthe “magistration,” are specified inArticle 15.17 of the Code of CriminalProcedure. This article reviews theprimary responsibilities of magistratesin conducting the Article 15.17hearing, a vital component of dueprocess for the protections it providesagainst unjust detention.

Article 15.17 Hearings

Though the term “magistration” isnot actually found in the law, it iscommonly used to describe theArticle 15.17 hearing. A magistration isdistinct from an “arraignment,”though the expressions are sometimesincorrectly used interchangeably.Article 26.02 of the Code of CriminalProcedure specifies that anarraignment takes place for thepurpose of fixing the identity of theaccused and taking his or her plea.The terms “initial appearance” and“probable cause hearing” moreaccurately describe the Article 15.17hearing but are seldom used.1

Because Article 15.17 does notprovide for an adversarial proceedinglike a trial or an examining trial,generally, no right to appointedcounsel attaches at this stage ofproceedings.2 Still, it is not uncommonfor courts to choose to appointcounsel at the time of magistration.Access to counsel in a timely manneris an important element to ensuringthat a person receives a fair trial.

Prompt Probable CauseDetermination

Though Article 15.17 does notexplicitly mention probable causedeterminations, appellate courts haveheld that this is an essential function of

Magistrate continued from page 1 the magistrate. If arrest is by awarrant, no further inquiry is needed.3However, in arrests without a warrant,the magistrate must make anindependent judicial determinationthat there is probable cause to detainthe defendant or require a bond priorto release.4

The magistrate’s review of probablecause should be based on sworntestimony or a written affidavitpresenting the facts of the case andthe circumstances of the arrest.5 Acommon sense approach consideringall the information available should beused to determine whether there is afair probability that the arresteecommitted the offense with whichs/he is charged.6

Article 17.033 of the Code ofCriminal Procedure clarifies theappropriate procedure in the eventthat the magistrate fails to findprobable cause for detention or ispresented insufficient sworn evidenceto make a determination. A personbeing held for a misdemeanor offensemust be released on a bond not toexceed $5,000 within 24 hours afterarrest.7 If the offense is a felony, thenthe right to be released matures at 48hours and the bond may not exceed$10,000.8 Individuals unable to make acash or surety bond must be releasedon a personal bond.9 Furthermore,until probable cause is established, anindividual cannot be held to the termsof any bond.

The only means to extend thesedetention timelines is if the prosecutordemonstrates sufficient reason why ithas not been possible to establishprobable cause. If adequatejustification is presented, the magistratemay postpone release for up to 72hours from arrest while additionalevidence to detain the defendant isestablished.10

The Magistrate’s Warnings

Another key function of magistrationis to make sure defendants are

informed of their rights. Thoughmagistrate’s warnings do not trackverbatim the Miranda decision or TexasCode of Criminal Procedure Article38.22, they cover the same basicprotections. Arrested individuals mustbe informed of:

• the charges against him or her andany affidavit on file;

• the right to remain silent;

• the right not to make a statement,and that any statement made canand may be used against theindividual in court;

• the right to stop any interview orquestioning at any time; and

• the right to have an examining trial(felonies only).

Specifically regarding access to legalrepresentation, magistrates mustinform arrestees of:

• the right to have an attorney presentprior to and during any interview orquestioning by peace officers orattorneys representing the State;

• the right to hire an attorney;

• the right to request appointment ofcounsel if the person cannot affordcounsel; and

• procedures for requestingappointment of counsel.

In addition to informing individualsof these rights, magistrates must alsoprovide reasonable assistance to ensurearrestees are able to complete theforms requesting appointed counsel atthe Article 15.17 proceeding. Thisrequirement was added as a provisionof the Fair Defense Act.

Upon giving these warnings, themagistrate should also ask if thearrestee understands these rights. If thearrestee indicates a lack ofunderstanding, the magistrate has aduty to clarify the meaning.

Bail and Related Issues

The general policy of Texas criminal

June 2005 Municipal Court Recorder Page 5

jurisprudence is that individuals shouldnot be incarcerated prior to trial. Tofacilitate release, a right to bail isspecified in Article 1, Section 11 of theTexas Constitution. The Article 15.17hearing occurs promptly after arrestlargely so that bond amounts andconditions can be set without delayand time in detention can beminimized.

Setting Fair Bail

Article 1, Section 13 of the TexasConstitution provides that “excessivebail shall not be required.” A recentstudy examining bond practices infour Texas counties found anecdotalevidence that political factors cansometimes play a role.11 Bond mightbe set higher, for instance, if the crimewas against a politically influentialindividual or if local law enforcementagents felt the defendant should bepunished for their behavior duringarrest.

To determine bail, courts shouldrightly be guided by five factors setout in Article 17.15 of Code ofCriminal Procedure: (1) The bailshould be high enough to assurecompliance on the part of defendants,(2) but not so high as to serve as aninstrument of oppression. (3) Thenature of the offense and thecircumstances under which it wascommitted should be considered,(4) as should the defendant’s ability tomake bail. To help the court make adecision, individuals may be requestedto submit proof of their financialcircumstances. (5) The future safety ofa victim of the alleged offense and ofthe community shall be considered.

Indicators of flight risk such as theaccused’s work record, family andcommunity ties and length ofresidency can be considered in makinga bond determination. Also relevantare evidence of a prior criminalrecord, the accused’s conformity withprevious bond conditions and theexistence of other outstandingbonds.12

Bond recommendations provided tomagistrates by county and districtjudges, though not appropriate as anabsolute criterion, can provide usefulguidelines to help standardize county-wide bond-setting practices.13 Multipleopportunities for bond review mayalso help protect defendants againstexcessive bond. Potential venuesinclude local magistrations conductedby municipal judges, centralizedmagistrate hearings conducted afterbooking at county jail and bondreduction hearings conducted afterindigent defendants still in detentionhave been appointed counsel.

Release Because of ProsecutorialDelay

If probable cause is established at theArticle 15.17 hearing but theprosecutor has not filed formalcharges, there are limits to the amountof time defendants can be held.Individuals who have not beencharged, and who are unable to makebond, must be released on either areasonable bond that the defendantcan make or on personal bond if:

• the defendant is charged with anygrade of felony and has beenincarcerated for 90 days;14

• the defendant is charged with amisdemeanor punishable by 180days in jail or more and has beenincarcerated for 30 days;15

• the defendant is charged with amisdemeanor punishable by 180days in jail or less and has beenincarcerated for 15 days;16or

• the defendant is charged with amisdemeanor punishable by fine-only and has been incarcerated forfive days.17

Because the magistrate conducting theArticle 15.17 hearing retains authorityover the defendant’s charge until acharging instrument (i.e., information,complaint or indictment) is filed in acourt with jurisdiction, the magistratearguably retains responsibility for

releasing defendants according to theseguidelines.18 Once the charginginstrument has been filed, however, themagistrate has no further responsibilityfor the case.

Out of County Arrests

If one county issues a warrant and theindividual named is arrested in adifferent county, under Article 15.18of the Code of Criminal Procedure,the defendant should be taken before amagistrate of the county where thearrest takes place. To minimize time indetention, the magistrate must first takebail, then immediately transmit thebond posted to the court that issuedthe warrant. If the accused is unwillingor unable to give bail, s/he should becommitted to jail in the county wherethe arrest occurred.19 The magistrateauthorizing the commitment must thenimmediately notify the sheriff of thecounty that issued the warrant. Thisnotice may be given by telegraph, bymail or by other written form ofcommunication.

The sheriff of the county issuing thewarrant is then responsible fortransporting the defendant back to theproper court or magistrate. If theofficer fails to take charge of theprisoner within ten days ofcommitment, however, the magistratein the arresting county may dischargethe individual from custody.

Making the Record

A record must be made of the eventsof each Article 15.17 hearing. Therecord should document the date andtime of the magistration proceeding,include the probable causedetermination and provide evidencethat the defendant was informed ofthe rights addressed in the magistrate’swarnings. The record must alsodemonstrate that the individual wasinformed of the right to requestassigned counsel, and indicate whethers/he asked for an appointed attorney.The Article 15.17 record is not only animportant mechanism for

Page 6 Municipal Court Recorder June 2005

2005 Poverty Guidelines ChartEach year the U.S. Department ofHealth and Human Services providesnotice of the new federal povertyguidelines by publishing them in theFederal Register. In February 2005,the guidelines were updated toaccount for an increase in pricesmeasured by the Consumer PriceIndex. The notice and guidelines wereprinted in the Federal Register, Vol.70, No. 33. The guidelines are oftenused to determine eligibility forfederal programs, legal aid servicesand other public services provided bynon-profits. For example, these arethe guidelines used to determineeligibility for food stamps and forLegal Aid services. The guidelines arenot a substitute for a judicial determi-nation of indigency. Determinationsof indigence must be made pursuantto the local procedures adopted byyour jurisdiction pursuant to Article

Persons in Povertyfamily unit guideline

2005 Poverty Guidelines for the 48Contiguous States and the Districtof Columbia

1 ............................................. $ 9,5702 ............................................. 12,8303 ............................................. 16,0904 ............................................. 19,3505 ............................................. 22,6106 ............................................. 25,8707 ............................................. 29,1308 ............................................. 32,390

For family units with more than 8 persons,add $3,260 for each additional person.

accountability, it also impacts the speedwith which legal representation can beappointed. Magistrates have anobligation to complete the requireddocumentation accurately, and totransmit requests for counsel promptlyto the appointing authority in order tosafeguard defendant rights.

Conclusion

The duties of the magistrate outlinedin this article highlight the central rolethese officials play in protecting justiceduring the pretrial phase. Magistrateshave significant responsibility forensuring that defendants are aware oftheir rights and for setting bail topermit their release from detention.The Article 15.17 hearing also providesimportant safeguards against unlawfuldetention in instances where there isinsufficient evidence that individualscommitted the crime of which theyare accused, or in instances whereformal charges are delayed.Magistrates’ records provide a trail ofaccountability, and serve as acornerstone of the criminal justicesystem.

_____________1 Clay Abbott, Former TMCEC GeneralCounsel, Magistration under Code of CriminalProcedure, Article 15.17. TMCEC Recorder, Vol.9, No. 5.2 Adversarial judicial criminal proceedingsinclude — formal charges, preliminaryhearings, indictments, misdemeanorcomplaints, arraignments, but do not includeany proceeding not deemed a “critical stage”of the criminal process or hearings conductedunder Article 15.17 of the Texas Code ofCriminal Procedure. See: United States v.Gouveia, 467 U.S. 180, 187-89, 104 S.Ct.2292, 2297-98, 81 L.Ed.2d 146 (1984); UnitedStates v. Ash, 413 U.S. 300 (1973); Cobb v.State, 2000 WL 275644 (Tex. Crim. App.2000); Hidalgo v. State, 983 S.W.2d 746, 752(Tex. Crim. App. 1999); Green v. State, 934S.W.2d 92 (Tex. Crim. App. 1996).3 Gerstein v. Pugh, 420 U.S. 103 (1975); ExParte Garcia, 547 S.W. 2d 271 (Tex. Crim. App.1977).4 Sanders v. City of Houston, 543 F. Supp. 694(S.D. Tex. 1982) affirmed 741 F.2d 1379 (5thCir. 1984).5 Texas Constitution, Article 1, Section 11.6 Illinois v. Gates, 462 U.S. 213 (1983);

Eisenhauer v. State, 754 S.W.2d 159 (Tex. Crim.App. 1988).7 Article 17.033(a), C.C.P.8 Article 17.033(b) C.C.P.9 County of Riverside v. McLaughlin, 111 S.Ct.1661 (1991).10 Article 17.033(c) C.C.P.11 Study to Assess the Impacts of the Fair DefenseAct on Texas Counties (January, 2005). PublicPolicy Research Institute, Texas A&MUniversity (www.courts.state.tx.us/oca/tfid/Resources.htm).12 Maldonado v. State, 999 S.W.2d 91, 93 [citingEx parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim. App. (1981)].13 It is well known that the Attorney Generalin Opinion DM-57 opined that the amount ofbail “must be determined by the Constitutionand rules set out in Article 17.15, rather thanby any arbitrary schedule of bond amounts.”What is not as well known is that the efficacyof the “use of schedules” has not beenaddressed by the Court of Criminal Appeals.Dix and Dawson in their treatise on CriminalPractice and Procedure, Texas Practice, Volume41, pages 328-329 provide some helpfulexamples of how “schedules” might be used

properly. “First it may be proper if used onlyas a basis for analysis rather than a finaldeterminant.” Next, in light of thecomplexities of the statutory factors, “use ofsome mechanical benchmark may be necessary,and a schedule could certainly be such abenchmark.”14 Article 17.151(1), C.C.P.15 Article 17.151(2), C.C.P.; Jones v. State, 803S.W.2d 712 (Tex. Crim. App. 1991).16 Article 17.151(3), C.C.P.17 Article 17.151(4), C.C.P.18 Ex parte Clear, 573 S.W.2d 224 (Tex. Crim.App. 1978), holds the filing of a felonycomplaint in justice or municipal court willgenerally give the court in which thatdocument is filed jurisdiction until thecomplaint is dismissed by the judge of thatcourt or superseded by formal felony charges.19 Article 15.19(a), C.C.P.

Federal Register, Vol. 70, No. 33,February 18, 2005, pp. 8378-8375.

26.04(l)-(o), Code of CriminalProcedure. Your jurisdiction’s localprocedures are available online athttp://tfid.tamu.edu/.

June 2005 Municipal Court Recorder Page 7

FROM THE CENTER

TMCEC Bench Books at a Discount

TMCEC has a large inventory of the following books and is offering them at discounted rates:

Publication Name Original Price Discounted PriceTMCEC Bench Book $20.00 $10.00Level II Certification Guide $25.00 $10.00

Quantities are limited, so order ASAP. Checks should be made payable to TMCEC. Shipping and handling is included inthe discounted price. Purchase may be paid for by credit card – please call Lidia Ball at TMCEC (800/252-3718). There isa $2 transaction fee for a credit card charge.

Free Certification Re-test in August!Need to re-test? Want to re-rest before the legislative changes are incorporated into the exam? Re-test for FREE at theTMCEC Legislative Updates (see dates and locations below), schedule a re-test at TMCEC (call 800/252-3718 toschedule a date and time), or test at a TCCA chapter test site (check with your local chapter for more information). Thefree re-test period is only for the month of August. Contact Jo Dale Bearden at 800/252-3718 or bearden@tmcec.comfor more information.

Legislative Update Testing from 1:00–5:00 p.m. at each site.

Houston August 7, 2005 Omni Houston WestsideLubbock August 10, 2005 Holiday Inn Hotel and TowersAustin August 15, 2005 Hyatt Regency Austin

Visit the TMCEC website for a test registration form: www.tmcec.com/files/04cert-test-appl.pdf.

Level III Reading List RevisedThe Reading List for Level III Certification has been revised. The list was reduced to 16 books and covers the followingtopics: caseflow management, financial management, leadership, management, teamwork and motivation, strategic planning,human resources, and court security. Go to www.tmcec.com/clerkcert/certprog.html to view and print the new list.

Those who have taken a part of Level III under the previous book list have until December 31, 2005 to complete the examdeveloped from the original book list. Study questions and the exam for the new book list will be available September 1,2005. Beginning January 1, 2006, all participants will be required to test on the new books. Contact Jo Dale Bearden at 800/252-3718 or bearden@tmcec.com for questions relating to your specific situation and the resulting timetables.

Legislative UpdatesThe TMCEC staff is looking forward again to offering a series of Legislative Updates in August 2005. These electiveprograms are six-hour in length. They do not count toward mandatory judicial education requirements for judges, but dooffer MCLE credit for attorneys and certification credit for clerks in the certification program. The registration fee is $50,which includes lunch and course materials. Participants are responsible for making and paying for their own hotelreservations. Please register using the registration form on page 8 of this newsletter.

August 8, 2005 Houston Omni Houston Westside 281/556-8338August 11, 2005 Lubbock Holiday Inn Towers 806/763-1200August 16, 2005 Austin Hyatt Regency Austin 512/477-1234

The registration deadlines for the Legislative Updates are in mid-July. Registration, however, is based on first-come-first-serve, so register early with TMCEC to ensure a seat in the program. Contact the hotel and reserve a roomASAP, as there are a limited number of $80 per night conference room rates available.

Page 8 Municipal Court Recorder June 2005

Legislative Update Registration Form

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

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

HOUSTON LUBBOCK AUSTIN

August 8, 2005 August 11, 2005 August 16, 2005 Omni Houston Westside Holiday Inn Towers Hyatt Regency Austin Telephone: 281/558-8338 Telephone: 806/763-1200 Telephone: 512/477-1234 Registration Deadline: 7/11/05 Registration Deadline: 7/18/05 Registration Deadline: 7/20/05

REGISTRATION FORM:

Name (please print legibly):

Street: City: Zip:

Office Telephone #: Court #: FAX:

Primary City Served: Other Cities Served:

Email Address:

Check all that apply:

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

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

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

Bailiff/Warrant Officer

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

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

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

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

$102 Credit Card (Complete the following.)

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

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

MasterCard

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

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

June 2005 Municipal Court Recorder Page 9

TMCEC FY05 PROGRAM AUDIOTAPESThe following are audiotape recordings from TMCEC’s Odessa Regional 12-Hour Judges and Clerks Programs. Duplicates are available

through the Center at no charge; one set per court.

Check herefor specifictapes

JUDGES PROGRAM:___ Juvenile Alcohol Offenses — Edward Spillane, Municipal Judge, College Station___ Language Interpreters — Ted Wood, Special Counsel for Trial Courts, Office of Court Administration, Austin___ Federal & State Case Law Update — Ryan K. Turner, General Counsel, TMCEC___ Driver’s License Offenses — Linda Frank, Chief Prosecutor, Arlington___ Sovereign Defendants — Ilse Bailey, Assistant City Attorney, Kerrville___ 21st Century Traffic Dilemmas: Things with Wheels — Tiffany Dowling, Program Attorney & Deputy Counsel, TMCEC___ Access to Justice — Martin Cirkiel, Mental Health Magistrate, Travis County Probate Court No. 1___ Ordinance Issues: Junked Vehicles — Candace Chappell, Senior Prosecutor & City Attorney II, Irving___ Ethics of Fine Collection — Jim Lehman, Collections Specialist, Office of Court Administration, Austin___ Fraud Prevention — Rene Henry, Collections Projects Manager, Office of Court Administration, Austin___ Ethics: TV Justice and Reality in the Courtroom — Robin A. Ramsay, Presiding Judge, Denton___ Expunction — W.E.B. Blackmon, Former Municipal Judge, Houston___ Attorney General Opinion Update — Michael Acuna, Municipal Judge, Dallas___ DSC and Deferred Disposition — Stewart W. Milner, Municipal Judge, Arlington and Kathryn Wells-Vogel, CMCC, Court Administrator,

Victoria___ Magistrate Duties: Juvenile Statements — Ryan K. Turner, General Counsel, TMCEC___ Ordinance Issues: Rubbish and Refuse — Lisa Hayes, Assistant City Attorney, El Paso___ Judgments and Non-Contested Cases — Stewart W. Milner, Municipal Judge, Arlington and Kathryn Wells-Vogel, CMCC, Court

Administrator, Victoria

CLERKS PROGRAM:___ Understanding the Commission on Judicial Conduct Processes — Tom Broussard, Counselor, Commission on Judicial Conduct___ DPS/FTA Program and Outside Vendors — Margaret Robbins, Program Director, TMCEC___ Open Records — Ted Wood, Special Counsel for Trial Courts, Office of Court Administration, Austin___ Juveniles and Minors (JNA Procedures) — Margaret Robbins, Program Director, TMCEC___ Advanced Telephone Techniques — Jim Lehman, Collections Specialist, Office of Court Administration, Austin___ Court Security — Allen Gilbert, Municipal Judge, San Angelo___ Fraud Prevention — Rene Henry, Collections Projects Manager, Office of Court Administration, Austin (same as judges)___ Processing City Ordinance Complaints — Ryan K. Turner, General Counsel, TMCEC___ Court Costs & Financial Management — Rene Henry, Collections Projects Manager, Office of Court Administration, Austin___ Overview of Processing Cases — Margaret Robbins, Program Director, TMCEC___ DSC and Deferred Disposition — Stewart W. Milner, Municipal Judge, Arlington and Kathryn Wells-Vogel, CMCC, Court Administrator,

Victoria (same as judges)___ Judgments and Non-Contested Cases — Stewart W. Milner, Municipal Judge, Arlington and Kathryn Wells-Vogel, CMCC, Court

Administrator, Victoria (same as judges)

Return order to TMCEC at 1609 Shoal Creek Blvd. #302, Austin, TX 78701 or fax to 512/435-6118.

Name: ___________________________________________________________________________________________________________

Title: ___________________________________________________________________________________________________________

Court: ___________________________________________________________________________________________________________

Address: ___________________________________________________________________________________________________________

City, State, Zip Code: __________________________________________________________________________________________________

Telephone Number: ___________________________________________________________________________________________________

Email Address: ______________________________________________________________________________________________________

Page 10 Municipal Court Recorder June 2005

2005-2006 TMCEC Academic Schedule At-A-Glance

Conference: Dates(s): City: Hotel Information:

Elective Judges/Clerks September 16-17, 2005 San Antonio St. AnthonyConference (TMCA)

32-Hr New Clerks September 19-23, 2005 Austin Holiday InnNorthwest

12-Hr Regional Clerks Conference October 25-26, 2005 Tyler Holiday Inn Select

12-Hr Regional Judges Conference October 27-28, 2005 Tyler Holiday Inn Select

12-Hr Regional Judges/Clerks Conferences November 8-9, 2005 Austin Omni Southpark

Judges Traffic Technology School (ABA) November 16-18, 2005 Dallas Westin Park Central

32-Hr New Judges/Clerks Conferences December 5-9, 2005 Austin Doubletree Hotel

Court Administrators: Special Topic Seminar December 5-7, 2005 Austin Doubletree Hotel

12-Hr Low Volume Seminar January 10-11, 2006 Horseshoe Bay Marriott Resort

12-Hr Regional Judges/Clerks Conferences January 18-19, 2006 San Antonio Crowne PlazaRiverwalk

12-Hr Prosecutors Conference February 8-9, 2006 Irving Harvey Hotel DFW

12-Hr Bailiffs/Warrant Officers Conference February 8-9, 2006 Irving Harvey Hotel DFW

12-Hr Regional Judges/Clerks Conferences February 20-21, 2006 Plano Marriott Legacy

12-Hr Regional Judges/Clerks Conferences February 28-March 1, 2006 Galveston San Luis Resort/Spa

Level III Assessment Clinic (Tentative) March 17-19, 2006 Austin T.B.A.

12-Hr Court Administrators March 2006 Horseshoe Bay Marriott ResortConference (Tentative)

12-Hr Regional Judges/Clerks Conferences April 20-21, 2006 Lubbock Holiday Inn ParkPlaza

12-Hr Regional Attorney Judges Conference May 1-2, 2006 S. Padre Island Radisson Resort

12-Hr Regional Non-Attorney Judges Conference May 3-4, 2006 S. Padre Island Radisson Resort

12-Hr Regional Clerks Conference May 8-9, 2006 S. Padre Island Radisson Resort

12-Hr Low Volume Seminar May 25-26, 2006 Corpus Christi Omni Bayfront

12-Hr Prosecutors Conference May 25-26, 2006 Corpus Christi Omni Bayfront

12-Hr Low Volume Seminar June 27-28, 2006 College Station Hilton ConferenceCenter

12-Hr Bailiffs/Warrant Officers June 27-28, 2006 College Station Hilton ConferenceConference Center

Level III Assessment Clinic (Tentative) June 2006 New Braunfels T.B.A.

12-Hr Regional Judges/Clerks July 12-13, 2006 El Paso Camino RealConferences (Tentative)

32-Hr New Judges/Clerks Conferences July 24-28, 2006 Horseshoe Bay Marriott Resort

June 2005 Municipal Court Recorder Page 11

TEXAS MUNICIPAL COURTS EDUCATION CENTER 2006 REGISTRATION FORM Seminar Date: Seminar Site:

Type of Program: Judge Clerk Court Administrator Prosecutor Bailiff/Warrant Officer* Legislative Update ($50 program fee) Assessment Clinic ($100 program fee)

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

Name (please print legibly): Last Name: First Name : MI:

Names also known by: Female/Male:

Position held:

Date appointed/Hired/Elected: Years experience:

Emergency contact:

HOUSING INFORMATION

TMCEC will make all hotel reservations from the information you provide on this form. TMCEC will pay for a single occupancy

room at all seminars: four nights at the 32-hour seminars, three nights at the 24-hour seminars/assessment clinics and two nights at the 12-hour seminars. To share with another seminar participant, you must indicate that person’s name on this form.

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

_______________________________________________ (Room will have 2 double beds.)]

� I need a private double-occupancy room, but I’ll be sharing with a guest. [I will pay additional cost, if any, per night]

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

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

Municipal Court of: Email Address:

Court Mailing Address: City: Zip:

Office Telephone #: Court #: FAX:

Primary City Served: Other Cities Served:

STATUS (Check all that apply):

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

*Bailiffs/Warrant Officers: Municipal judge’s signature required to attend Bailiff/Warrant Officer programs.

Judge’s Signature: Date:

Municipal Court of:

I certify that I am currently serving as a municipal court judge, city prosecutor or court support personnel in the State of Texas. I agree that I will be responsible for any costs incurred if I do not cancel five (5) working days prior to the seminar. I will cancel by calling the Center. If I must cancel on the day before the seminar due to an emergency, I will call the TMCEC registration desk at the seminar site. If I am a “no show,” TMCEC reserves the right to invoice me or my city for meal expenses, course materials and possibly housing ($80 plus tax per night). If I have requested a room, I certify that I live at least 30 miles or 30 minutes driving time

from the seminar site. *Payment is required ONLY for the Prosecutor Programs, Assessment Clinics and the Legislative Updates; payment is due with registration form. Participants in the Assessment Clinics must cancel in writing two weeks prior to the seminar to receive refund. Participant Signature Date

PAYMENT INFORMATION:

Check Enclosed (Make checks payable to TMCEC.)

Credit Card (Complete the following; $2.00 will be added for each registration made with credit card payment.)

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

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

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

Authorized Signature

Please return completed form with payment to TMCEC at 1609 Shoal Creek Boulevard, Suite 302, Austin, TX 78701.

Fax registration forms with credit card information to 512/435-6118.

(Not for Legislative Updates)

(Level III Assessment Clinics and Prosecutors Programs):

Page 12 Municipal Court Recorder June 2005

CLERK’S CORNER

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CORNERCORNERCORNERCORNERCORNER

Recurring Court QuestionsBy Margaret Robbins, Program Director, TMCEC

Recurring Questions continued on page 16

For this column, I reviewed questionsfrom the 800-line and from my emailand decided to address some issuesthat keep popping up.

Signature Stamps and ElectronicSignatures

Most of the questions about signaturestamps and electronic signaturesconcern judges’ signatures and whetherthe judge must be present when his orher signature is affixed to a document.The answer is “yes,” the judge must bepresent because a signature means thatthe judge has knowledge of theinformation contained in thedocument and agrees to having his orher signature on the document. SeeDaniels v. Stovall, 660 F. Supp. 301 (S.D.Tex. 1987), which cites AttorneyGeneral Opinion JM-373 (1985)regarding the presence of the personwhose signature is being stamped. InDaniels, a Texas justice of the peacedelegated his authority to affix hisrubber stamped signature to a mentalhealth warrant outside his presence.He reviewed the warrant and adoptedit the next business day. The courtcited favorably Attorney GeneralOpinion JM-373 (1985), which statesthat a judge may not delegate authorityto affix her or his signature unless thesignature is affixed under the judge’spersonal supervision. Therefore,regardless of whether the signature isbeing stamped or being affixedelectronically, the judge must reviewand approve the document before hisor her signature is affixed.

Time Payment Fees

Defendants must pay a $25 timepayment fee on or after the 31st day

after the judge signs a judgment on acase if any part of the fine, costs orrestitution is not paid. See Section133.103, Local Government Code. Ifa defendant discharges payment of thefine by community service or jailcredit and the court collects no money,the city does not have to pay the Statetheir portion of the fee. If a defendantpays any part of the fine and costs bymoney and any part of the payment ismade on or after the 31st day afterjudgment, the defendant is liable forthe time payment fee.

If a defendant fails to complete adriving safety course or the terms ofdeferred disposition and the judgeenters a final judgment, the defendantdoes not have to pay the time paymentfee unless the defendant fails to paythe fine before the 31st day after thejudge signs the final judgment at theend of the deferred or the drivingsafety course.

Warrant Fees

The $50 warrant fee may be collectedonly if a peace officer processes orexecutes a warrant or a capias. SeeArticle 102.011, Code of CriminalProcedure. Just because a clerkprocesses the paperwork and a judgeissues a warrant, it does not mean thatthe warrant fee can automatically becollected. This fee is collected only if apeace officer performs some type ofservice. The officer must eitherexecute the warrant by arresting thedefendant or, after attempting to servethe warrant, documents the service.Without documentation in the courtfile of the officer’s execution orprocessing of the warrant, the court

cannot assess and impose the warrantfee.

If a defendant is arrested on a warrantand the case is later dismissed, thecourt cannot collect the warrant fee.An example of this is when adefendant charged with the offense offailure to maintain financialresponsibility fails to appear, isarrested and then shows proof ofvalid insurance for the day the offenseoccurred. In this instance, the court isrequired to dismiss the charge. Becausethere is no conviction, even thoughthere was an arrest, the court cannotimpose the warrant fee.

Citations

Who has the authority to issuecitations? State law provides onlypeace officers with authority to issuecitations. This authority is found inSection 543.003, Transportation Code,and in Article 14.06(b), Code ofCriminal Procedure. Codeenforcement officers or animal controlofficers who are not peace officers donot have authority to issue citationsunless their city provides them thatauthority by ordinance.

The purpose of a peace officer issuinga citation is in lieu of making an arrest.If the officer makes an arrest, theofficer does not issue a citation. If theofficer is doing an investigation anddetermines that charges should befiled, the officer does not issue acitation but, instead, files a sworncomplaint with the court. The courtnotifies the defendant of the charges.Many cases handled by code

June 2005 Municipal Court Recorder Page 13

RESOURCES FOR YOUR COURT

Deadline for 2005Texas JudicialSystem Annual

ReportIn order to capture your court’s datafor the 2005 Texas Judicial SystemAnnual Report, the Office of CourtAdministration (OCA) must receiveyour municipal court monthly activityreports for the state fiscal year 2005(September 1, 2004 through August31, 2005) by October 5, 2005.

All municipal courts must submit amonthly court activity report to OCA,even if the court has no activity forthe month.

The monthly court activity reportcollects information needed by theLegislature to make decisionsregarding the jurisdiction, structureand needs of the court system. Theinformation is also used by manyother entities and individuals: theComptroller’s Office, the LegislativeBudget Board, the Department ofPublic Safety, local judges, citycouncils, commissioners courts, localand state auditors, the media(especially local newspapers), the TexasMunicipal Courts Education Center,research for special interest groups,universities (professors and students),attorneys, individuals running againstincumbent judges in elections, andmembers of the general public.

Reports from September 1992 to thepresent are available to the publiconline on the OCA website atwww.dm.courts.state.tx.us/oca/reportselection.aspx. Reports ofjudicial activity must be submitted in atimely manner in order to ensure thecompleteness and accuracy of theserecords.

Please call Sandra Mabbett, JudicialInformation Technician, at 512/463-1640 if you need assistance with orhave questions about the monthlyreports.

GCAT ConferenceThe Governmental CollectorsAssociation of Texas (GCAT) isoffering its 6th Annual Court CollectionsConference & Workshop on July 27-29,2005 at the Marriott Waterway Resort& Conference Center in TheWoodlands. Amongst the topics to bediscussed: Improving Court Collections,Law Enforcement & Warrant Officers’Role in Collections, Getting Results(Interviewing, Telephoning, Letters), InmateCollections, Affordable Technology & SkipTracing, and a Legislative Update. Theregistration fee is $150 for GCATmembers and $175 for non-members.Participants are responsible formaking and paying for their ownhotel arrangements at the MarriottWaterway (281/367-9797). TheGCAT conference rate is $80 single/$95 double – room reservationsshould be made no later than June 27,2005. For additional information,contact Nadine Jenkins at 936/538-8088 or Jim Lehman at 512/936-0991. TMCEC highly recommendsthe program for judges, courtadministrators, clerks, bailiffs, andwarrant officers.

Courthouse AccessThe U.S. Access Board has created theCourthouse Access AdvisoryCommittee to develop guidancematerial on providing access tocourthouses for people withdisabilities. As part of this effort, thecommittee is soliciting “best practice”examples of accessibility in new andrenovated courthouse design. If youhave photographic examples or othergraphics that highlight good examplesof accessibility in courthouses, pleaseshare them with this committee.Information is sought on all types ofcourthouses and spaces within them.This includes the following:

• courtroom spaces, such as juryboxes, witness stands and judges’benches;

• judges’ chambers;

• jury rooms;

• witness rooms;

• mediation and counsel rooms;

• holding cells;

• information and service areas suchas clerk and cashiers offices;

• law libraries;

• exterior accessible routes,entrances and drop-off areas; and

• interior building way-findingassociated with courthouses.

The format of the final product hasnot been determined yet, but allexamples used will be credited to thedesigner and photographer. Pleasesend graphic examples to DavidCalvert at lawdpc@swbell.net. CallMarlene Walli Shade, AIA at 703/698-9064 with any questions you may have.

Page 14 Municipal Court Recorder June 2005

Setting Up a Collection Programor Everything You Ever Wanted to Know about Collections that Jim Lehman Didn’t Tell You

By Judge Lester Rorick, Pasadena Municipal Court

COLLECTIONS CORNER

If you have been following theLegislature, you know that collectionprograms may not be optional muchlonger.1 Nevertheless, collectionprograms are frequently met with muchskepticism on the part of seasonedjudges and court clerks alike. Somebelieve simply that “if it ain’t broke,don’t fix it;” some have a sincerely heldbelief that making paymentarrangements is a non-delegable judicialfunction; and some simply resist changeof any kind.

At the suggestion of a colleague, Iattended my first collections class abouttwo years ago. For some time, I hadbeen troubled by the process (or lackthereof) in determining the particularsof payment plans or entitlement tocommunity service in my court. Theproblem was not that judges weredisinterested, unwilling or unqualified todo the work. Rather, in high volumecourts like ours, it was simplyimpractical for the judge to engage inthe amount of inquiry necessary tomake an appropriate paymentarrangement or determine whethercommunity service ought to be granted.(As you know, some folks will promiseanything to simply get out of thebuilding; others have not given anyforethought to their finances and justdon’t know what they can reasonablydo; and still others will not be forthrightabout their income and expenses.) Ifcompliance really is the objective, thenthe goal of the collection programought to be to work out an agreementthat people can live with rather thanhave them make a promise that theycan’t live with. While I was immediatelysold on the collection program of theOffice of Court Administration(OCA), getting it in place wassomething of a task. What follows is a

“nuts and bolts” assessment of what ittakes to get a program moving.STEP ONE. Know thyself. If youwant to know whether your collectionprocess is working, you must knowwhere to start. The success of acollection program is measured bywhat OCA calls a collection ratio. Acollection ratio is a fraction, thenumerator of which is fines collectedand denominator of which is finesassessed. With all due respect to theOCA, a better term would becompliance ratio. I suggest compliancebecause “payment” can be made inalternative ways including but notlimited to community service, jail timeserved and perhaps even waiver onaccount of indigence. OCA was kindenough to give me a baseline numberwhen we started out; thereafter it wasjust a matter of getting with the city’sIT (Information Technology) folks torefine the process. Be sure that youunderstand how your software worksbefore you undertake this step. Forexample, my software imputes awindow fine to each case when it isentered into the computer. If theaccused fails to appear, the computermay show an assessed fine. Clearlythere is no collection and yet, thecollection system has not failed. I,therefore, do not include as assessedfines those fines imputed for no showsunless and until an appearance is made.In the numerator of the fraction, Icredit full payment to any person whohas completely discharged his or hercommunity service obligation. I noticethat there is pending legislation tostandardize the method of determiningthe collection ratio.STEP TWO. Try it out on theclerks. Some of my staff was dubiousabout the collection process and

particularly the follow-up. Historically,this had been simply a function ofissuing a capias pro fine. So, we devised asimple competition among the severalsenior clerks. Each took a list ofpersons behind in fine payments andbegan to call those persons namedtherein. The results were bothsurprising and rewarding. An amazingnumber of those called apologized,came in and paid. Thus encouraged, theclerks got behind at least that part ofthe process. We next introduced thefinancial information form into thecollection process. Each person whoindicated that he or she neededpayment assistance got a clipboard,financial information statement and apencil. Rather than allow the collectioninterview to be accomplished bycollection clerks, however, it was doneby the judge. This exercise satisfied thejudges and the clerks that betterpayment plans are a result of betterinformation. The whole process wasnow sold, and it was only a matter ofstaffing to get it rolling.STEP THREE. Personnel—thechicken or the egg. The first staffingdecision that has to be made is whetherto take a collector and make a clerk ortake a clerk and make a collector. Thecollection personnel must, of necessity,possess both skills. After interviewingseveral seasoned court collectors(whom I couldn’t afford), I opted totrain as collectors two of my deputyclerks whom I thought possessed theright balance of firmness andcompassion to handle the job. Formany courts, this may be the bestanswer. OCA is generous with itsassistance and certainly there are manyfine classes available, so collectiontraining is not a problem. Promotingfrom within rewards hard work and

June 2005 Municipal Court Recorder Page 15

allows the chance for upward mobilitywithin the department. The alternative isto create a higher paying slot in yourcourt and then bring in someone fromthe outside who has to be trained tounderstand court procedures. Onbalance, I think this approach onlyengenders hard feelings on the part ofthe existing staff. Moreover, if yourclerks are trained as collectors, you havemuch greater flexibility in coveringthose difficult holiday and vacationperiods.There is also a hidden staffing expenseto the collection process that needs tobe carefully thought out. Somebody orsomething has to transport originalcourt papers from the courtroom tothe collection office and then to thecashiers for payment. Most of yourcourt personnel are fully engaged inother tasks. Simply stated, you musteither assign an employee to movepapers around or come up with analternative. Our court has recentlycontracted for the installation ofpneumatic tubes to move papers fromthe court to the collectors and from thecollectors to the cashiers. Although thesesystems are initially fairly expensive, theypay for themselves in a year or twobecause they allow you to cut a runnerfrom the process and employ him orher elsewhere in the court.STEP FOUR. Location. There areseveral fine articles published by OCAthat detail the ideal collection facility.Unfortunately, most of us do not havethe luxury of starting with a clean slate.Where to locate collectors can be a realproblem. First, they need to be outsideof the secured area where money istaken. Second, they have to be in anarea where there is adequate seating.And third, they have to have somesecurity for themselves, as they oftendeal with difficult situations. In my case,I started with none of the above.Before I could get the program rolling,therefore, I had to remake a holdovercell into a collection room and “evict”the prosecutor from her office (at thecost of a much nicer office), so that Icould have office space adjacent to the

COLLECTIONS CHECKLISTI. LOCATION (Outside of the secure

area)Think out the location before youmake the moveAdequate waiting room and seatingare essentialNeed to provide security forcollectors

Panic ButtonSecurity VideoMarshal’s Station

II. FURNISHINGS AND EQUIPMENTDeskComputerDuplex PrinterCopier (for d/l, etc.)Sound SystemWaiting AreaHalf DoorFile CabinetAir FilterBusiness CardsDigital Camera

III. MISCELLANEOUSFormsClipboardsGolf PencilsApplications – Sp/EngATMSignageRunner – Pneumatic Tubes

IV. MEASURING YOURPERFORMANCE

Decide on your compliance ratioCheck it out before you startCradle to grave assignmentRework docket

courtrooms but outside the clerk’soffices. I then “borrowed” somebenches to line the hallways, installed asecurity camera in each office and put amarshal’s station in the hallway. Bothmy bailiff and marshal can monitor theactivities in the collection offices andrespond quickly to any problems.Panic buttons are also a good idea.STEP FIVE. Furnishings. At aminimum, each collector should have adesk, a computer, a printer (wepurchased duplexing printers—theysave both paper and file space), acopier (to make photocopies ofdriver’s licenses or ID cards, etc.), and afile cabinet. We have also installed aloudspeaker system and air filtrationsystem in the area. (Remember,collection clerks are up close andpersonal with the general public all daylong.) In one of my collection offices,we have installed a half door so thatthe collection clerk can have privacywhen not interviewing and someadded security when the hall is full ofpeople. We have also given each of thecollectors a digital camera to help inidentification of persons who have nopicture identification.MISCELLANEOUS. Before youundertake the program, be sure thatyou’re satisfied with your financialinformation statement, and be sure thatyou have an adequate number ofclipboards to handle even large docketsand a supply of pens or pencils. Weopted to buy boxes of golf pencils.They’re cheap and adequate for the taskof filling in applications. After eachdocket, somebody has to prepare forthe next by restocking the clipboards,pencils and financial informationstatements.CONCLUSIONEstablishing a good collectionsprogram takes time and it’s hard work.The time and effort will pay rewards,however. One year after we put ourcollections program in place inPasadena, we can boast a 90%compliance ratio. As we continue todevelop and refine our program, Iexpect that number will increase. Each

court is different. We’ve been privilegedto have visitors from other parts of thestate come to watch our process. Ileave them with the same thought thatI will leave with you: each court isdifferent; I don’t expect that you willadopt the Pasadena plan, but you mayfind things that you can adapt for use inyour own court.

1 S.B. 1863 would require cities with apopulation of over 100,000 to develop andimplement a collections improvement programwith the Office of Court Administration. Asof June 3rd, the Governor had neither vetoednor signed the bill.

Page 16 Municipal Court Recorder June 2005

TEXAS MUNICIPAL COURTSEDUCATION CENTER

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

TMCEC MISSIONSTATEMENT

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

Change Service Requested

Presorted StandardU.S. Postage

PAIDAustin, Texas

Permit No. 114

enforcement and animal controlinvolve investigations. Like peaceofficers, after the investigation iscomplete, the code enforcement oranimal control officer files charges(sworn complaint) with the court. Thecourt notifies the defendant of thecharges.

Another question involving citations iswhat happens if the officer forgets tohave the defendant sign the citation?The answer is nothing. The charge canstill be filed. If the offense is a trafficoffense in Subtitle C, TransportationCode, and the defendant fails toappear, the prosecutor cannot chargethe defendant with the offense ofviolation of promise to appearbecause the defendant did not sign apromise to appear. But, the defendant

could be charged with the offense offailure to appear.

What many courts do not realize is thatpeace officers are not required toobtain a signature on a citation foroffenses outside of Subtitle C,Transportation Code. Article 14.06(b),Code of Criminal Procedure, doesnot require the officer to obtain asignature when issuing a citation. Inthese cases, it does not matter whetherthere is a signature on the citation ornot.

Close

If you have certain issues that youwould like to see presented in thiscolumn or would like to be a guestcolumnist, please contact MargaretRobbins at 800/252-3718.

Recurring Questions continued from page 12

An E-An E-An E-An E-An E-VVVVVersion ofersion ofersion ofersion ofersion ofThe RecorderThe RecorderThe RecorderThe RecorderThe Recorder

Would you be interested inreceiving an email version ofThe Recorder, instead of apaper copy sent by mail? Thiswould help us conserve grantfunds. It would be sent toyou in an email as anattachment in pdf (Adobe)format.

If you would like to receivean email version instead of apaper copy, please emailTMCEC attmcec@tmcec.com.