Fines, Fees, Costs, and Indigence Revisited

FUNDED BY A GRANT FROM THE

TEXAS COURT OF CRIMINAL APPEALS

TEXAS MUNICIPAL COURTS

EDUCATION CENTER

2210 HANCOCK DRIVE, AUSTIN, TEXAS 78756

TELEPHONE 512.320.8274

1.800.252.3718

FAX 512.435.6118

TMCEC IS A PROJECT OF THE TEXAS MUNICIPAL COURTS ASSOCIATION

Fines, Fees, Costs, and Indigence Revisited

Presented by

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

What a difference a year makes! In FY 2017, the TMCEC staff attorneys presented Fines, Fees, Costs, and Indigence

at all the regional programs, asking whether we can better serve the interests of the poor while maintaining public

safety, respecting equal protection of the law, and administering fairly? Do we need more laws or do we need to do

a better job of enforcing the ones we have? The 85th Legislature attempted to answer both those questions. H.B. 351

and S.B. 1913 increase procedural protections for low income and indigent criminal defendants and give judges more

leeway in delineating between fines and state mandated court costs and in the manner in which each is respectively

discharged. For the most part, these bills do not compromise the ability of criminal courts, after affording due process,

to enforce their lawful judgments against all defendants. This clinic will reexamine fines, fees, costs, and indigence

in light of recent events and new laws regarding sentencing, community service, and enforcement.

By the end of this session, participants will be able to:

1. Identify statutory law and Texas and federal case law related to fines, fees, costs, and indigence;

2. Discuss the ethical violations committed when courts do not comply with safeguards in Texas law;

3. List the three alternative means defined under Texas law related to the satisfaction of fines and costs owed

as a result of a fine only conviction;

4. Contrast the right to counsel and the right to appointed counsel for defendants facing Class C misdemeanor

charges in Texas municipal courts; and

5. Describe effective practices used to reduce the number of defendants arrested for fine only misdemeanors.

1

FINES, FEES, COSTS, AND INDIGENCEREVISITEDRyan Kellus TurnerGeneral Counsel and Director of Education, TMCEC

ONE‐DAY CLINIC

Other than the Format of this Presentation

Where did we leave off?And what has happened since?

2

DECEMBER 2017

It was among “25 examples of improper or unnecessary guidance documents identified by our Regulatory Reform Task Force ” Attorney General Jeff Sessions.

3

• This type of litigation involves bringing lawsuits intended to effect societal change.

• It may be a class action lawsuit or individual claims with broader significance and may rely on statutory or constitutional claims.

• It is widely and successfully used to influence public policy and to attract media attention.

4

Our Focus in AY 2017

85th Texas Legislature (2017)

HB 351 and S.B. 1913

Let’s See if We Can Clear Some Things Up

5

Objectives

1. Identify statutory law and Texas and federal case law related to fines, fees, costs, and indigence;

2. Discuss the ethical violations committed when courts do not comply with safeguards in Texas law;

3. List the three alternative means defined under Texas law related to the satisfaction of fines and costs owed as a result of a fine‐only conviction;

4. Contrast the right to counsel and the right to appointed counsel for defendants facing Class C misdemeanor charges in Texas municipal courts; and

5. Describe effective practices used to reduce the number of defendants arrested for fine‐only misdemeanors.

Part I. IMPOSING FINES, FEES, & COURT COSTS

True or False

A. True

B. False

True

False

0%0%

A trial court denies a defendant due process when it arbitrarily refuses to

consider the entire range of punishment or imposes a

predetermined punishment.

6

Consider the full fine range for the offense.

• Make meaningful use of the fine range because after a judgment is final, there is no statutory authorization or mechanism to change the fine amount.

What message is your court sending about fines?

IMPOSING FINES, FEES, & COURT COSTS (cont.)

See Related Resources: Road Map to Resolution and What If I Can’t Pay?

What Do You Think?

Yes

No

0%0%

A. Yes

B. No

Should a court consider the financial resources and obligations of the defendant, the burden payment of a fine will impose, and ability of the defendant to pay?

Article 45.041(b), Code of Criminal Procedure.

The judge may direct the defendant to pay:

(1) the entire fine and costs when sentence is pronounced,

(2) the entire fine and costs at some later date, or

(3) a specified portion of the fine and costs at designated intervals.

Questions:

‐ Why are there three options?

‐ What happens if the defendant cannot pay the fine and costs when the sentence is pronounced?


7

H.B. 351/S.B. 1913

I. New Requirement for Assessing Ability to Pay for Open Court Pleas: Art. 45.041(a-1)– Judge is Required to Make an Inquiry

– If Insufficient Resources, Determine if Fines and Costs should be:

1. Paid at Later Date or Designated Intervals

2. Discharged via Community Service

3. Waived in Full or Part or A Combination of 1-3


If the judge determines that the defendant is unable to immediately pay the fine and costs, the judge shall allow the defendant to pay the fine and costs in specified portions at designated intervals.

– Article 45.041(b‐2), Code of Criminal Procedure.

A judge may require a defendant who is determined by the court to have insufficient resources or income to pay a fine or costs to discharge all or part of the fine or costs by performing community service. ‐Article 45.049(a), Code

of Criminal Procedure.

H.B. 351/S.B. 1913

II. A. New Waiver of Payment/Default Requirement Repealed: Art. 45.0491

Courts May Waive All or Part of A Fine or Cost IF (1) defendant is indigent or (2) does not have sufficient resources/income to pay all or part of fine or costs or (3)was a child at the time of the offense AND (4) discharging the fine or costs by Community Service would impose an undue hardship on the defendant.

8

H.B. 351/S.B. 1913

II. B. New Waiver of Payment/Presumption of Indigence for Certain Children: Art. 45.0491

A defendant is presumed to be indigent or not have sufficient resources/income to pay all or part of the fine or costs if:

1. in conservatorship of the Department of Family and Protective Services or was at the time of the offense; or

2. designated as a homeless child or youth or an unaccompanied youth, or was so designated at the time of the offense.

Part II. ENFORCING FINES BY COMMITMENT TO JAIL

Yes or No

A. YesB. No

Yes

No

0%0%

May an indigent defendant be incarcerated solely for inability to pay a fine, court costs,

or restitution?

9

True or False

A. True

B. False

True

False

0%0%

Courts must not incarcerate a person for nonpayment of fines or fees without first conducting an indigency determination and establishing that the failure to pay was willful.

ENFORCING FINES BY COMMITMENT TO JAIL (Cont.)

An indigent defendant shall not be incarcerated solely for inability to pay a fine, court costs, or restitution.

Tate v. Short, 401 U.S. 395 (1971); Gipson v. State, 383 S.W.3d 152 (Tex. Crim. App. 2012) (citing Bearden v. Georgia, 460 U.S. 660 (1983).

“Courts must not incarcerate a person for nonpayment of fines or fees without first conducting an indigency determination and establishing that the failure to pay was willful.”

DOJ Dear Colleague Letter (pp. 3‐4)

Bearden v. Georgia (1983) – A sentencing court cannot revoke a defendant’s probation for failure to pay a fine and to make restitution, unless the defendant was

responsible for the failure or that the alternative forms of punishment were inadequate to meet the State’s

interest in punishment and deterrence.

Tate v. Short (1971) – An indigent defendant’s fine could not be automatically converted to jail time simply because they could not pay the fine in full. Courts must allow “alternative means” to

discharge fines and costs.

Williams v. Illinois (1970) – A defendant sentenced to jail longer to discharge fines and costs was a violation of the Equal Protection

Clause of the 14th Amendment

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Extrapolating from Bearden

• If the probationer has willfully refused to pay when he has the ability to OR has failed to make sufficient bona fide efforts, then the State is justified in using imprisonment as a sanction to enforce collection

Texas Court of Criminal Appeals: “Bearden prescribes a mandatory judicial directive to make inquiry into the reason for failure to pay and permits jail when alternative means are inadequate for punishment and deterrence.” Gipson v. State, 428 S.W.3d 107, 110 (Tex. Crim. App. 2014).

Black’s Law Dictionary:“Willfully” ‐ Voluntary & Intentional“Bona Fide” ‐ Made in Good Faith


A CAPIAS PRO FINE IS NOT A COMMITMENT ORDER.

• Article 45.046(a), Code of Criminal Procedure.

– A non‐indigent defendant may be committed to jail when he or she defaults in the discharge of the judgment if the person has failed to make a good faith effort to discharge the fine and costs.

– An indigent defendant may be committed to jail when he or she defaults in the discharge of the judgment if he or she has (1) failed to make a good faith effort to discharge the fines and costs through community service and (2) could have done so without experiencing any undue hardship.


• Commitment for nonpayment may only be ordered after the judge (1) at a hearing (2) makes the required written determinationunder Art. 45.046(a), C.C.P.

• In the event of commitment, the length of incarceration to satisfy the fine and costs is specified by the convicting court: not less than $50 for each period (not less than eight or more than 24 hours) of time served.

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H.B. 351/S.B. 1913

III New Jail Credit: Art. 45.048

A defendant should be given credit of not less than $100 for each period of confinement (8‐24 hours as determined by judge).


A defendant who is jailed solely because of inability to pay or who has been in jail a sufficient length of time to satisfy the fine and costs shall be released on habeas corpus. Art. 45.048, C.C.P.

Canon 2(A) –Comply with Law/Promote Public Confidence in Integrity/Impartiality of JudiciaryCanon 3(B)(2)– Maintain Professional Competence in the LawCanon 3(B)(6) Manifesting Socioeconomic Bias/Prejudice (Judge and Court Staff)

Canon 3(D)(1) ‐ A judge who knows of judicial misconduct raising a substantial question as to another judge’s fitness is obligated to (1) inform SCJC or (2) take appropriate actionCanon 3(C)(3) – Special Responsibility for Judges with Supervisory Duties to Assure Prompt and Proper Performance of Judges

No Presumption of Inability to

Pay

MANDATORY Judicial Directive to Determine

At Time of Judgment/ Sentence

At Time of Commitment Order/Hearing

(Art. 45.041, CCP) (Art. 45.046, CCP)

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PRACTICE TIPS

PRACTICE TIPS

• Document the Determination

• A certified copy of the judgment, sentence, and order are sufficient to authorize confinement of a defendant.

• Time is of the Essence

• Be Ready for Public Document Inspection

H.B. 351/S.B. 1913

IV. New Requirements for Capias Pro Fine: Art. 45.045Court may not issue a capias pro fine unless the court first holds a hearing on the defendant’s ability to pay, and:

1. the defendant fails to appear at the hearing; or

2. based on evidence presented at the hearing, the court determines that the capias pro fine should be issued.

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• Bookend One: During or Immediately After Imposing the Sentence in OPEN COURT (Art. 45.041, CCP)

• Bookend Two: Prior to a Capias Pro Fine (Art. 45.045) or Commitment (Art. 45.046, CCP)

The Bookend Approach

H.B. 351/S.B. 1913

Part III. COURT ACTIONS ON NON‐PAYMENT

True or False

A. True

B. False

True

False

0%0%

Courts may consider alternatives to incarceration for indigent defendants unable to

pay fines and fees.

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Dear ColleagueP. 4

Alternative Means

Installment Payments

Art. 45.041 (b‐2) CCP

Community Service

Tutoring• 45.041(b‐3), CCP• Art. 45.049, CCP• Art. 45.0492, CCP

Art. 45.0492, CCP

H.B. 351/S.B. 1913

V. Community Service Expanded Art. 45.049 and 45.0492

“More than Just Picking Up Garbage”• Work/job skills training• Prep class for high school equivalency exam (administered under 7.111 Ed Code)

• Alcohol/drug abuse program

• Rehabilitation program• Counseling/self improvement program

• Mentoring program• Or similar activity

COURT ACTIONS ON NON‐PAYMENT (Cont.)

Waiver• Waiver is not an alternative means of payment

• Under Art. 45.0491, CCP, waiver is only possible if:– Default AND

– Defendant is indigent or a child AND

– Community service/other alternative means would impose an undue hardship

• “Of 766 municipal courts in Texas the ACLU reviewed that individual settled or resolved at least 100 cases in the last year, the median rate at which these courts allowed people to perform community service was 0.2 percent. The report also said that more than half of the municipal courts declined to waive any amount.”

Associated Press (November 7, 2016)

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Active Enforcement Capias Pro Fine

Passive Enforcement DPS Omni‐FTA Program

TxDOT Scofflaw Program

Private Enforcement Collection Firms

Civil Enforcement Abstract of JudgmentWrit of Execution

COURT ACTIONS ON NON‐PAYMENT (Cont.)

Permissible Actions on Non Payment

Courts must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections.

The Debate: What constitutes “constitutionally adequate procedural protections?”

Dear Colleague(pp. 6‐7)

True or False

A. True

B. False

True

False

0%0%

Courts must not condition access to a judicial hearing on the prepayment of fines or fees.

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• Access to Courts (pp. 4‐5)

• Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release (pp. 7‐8)Related, See, Ned Minevitz, “Broadening Bearden: Pre‐Trial Justice and Why Bail Practices May Be In Store For

Major Changes, The Recorder (Aug. 2016)

• Courts must safeguard against unconstitutional practices by court staff and private contractors (p. 8)

‐ A Canon 2 Violation

Dear Colleague

BAIL• As a general rule in Texas, bail may

not be denied. (Article I, Section 11, Texas Constitution)

• The ability or inability to make bail does not, alone, control in determining the amount; however, it is an element to be considered along with the others named in Art. 17.15, C.C.P.

• While bail should be sufficiently high to give reasonable assurance that the defendant will appear, the power to require bail is not to be used as an instrument of oppression. (Art. 17.15(1) ‐ (2), C.C.P.)

• A defendant charged with a Class C misdemeanor who is in jail must be released on personal bond or reduction of bail amount if the State is not ready for trial within 5 days of commencement of detention. (Art. 17.151, C.C.P.)

REMEMBER: Distinguish Between Bail being Set by a Magistrate vs. a Judge

H.B. 351/S.B. 1913VI. New Provisions Relating to Bail & Bond:

Art. 17.42 and 45.016A. Post‐charging, judge may require defendant to give personal bond (without a personal bond fee); however, the judge may not, either instead of or in addition to personal bond, require defendant to post a bail bond (cash or surety) unless (1) the defendant fails to appear;

and (2) the judge determines that:

• the defendant has sufficient resources or income to give a bail bond

• a bail bond is necessary to secure the defendant’s appearance in court.

B. If defendant doesn’t post a bail bond within 48 hours, the judge must reconsider bail bond and presume defendant doesn’t have sufficient resources/income to give the bond (may require a personal bond)

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“Money Bail” Suits

VII. “Safe Harbor” Provisions

NEW REQUIREMENT TO RECALL AN ARREST WARRANT FOR FAILURE TO APPEAR (Art. 45.014)

If a defendant voluntarily appears and makes a good faith effort to resolve the warrant before it is executed a judge must recall it.

NEW REQUIREMENT: CAPIAS PRO FINE DUTY TO RECALL (Art. 45.045)

A court must recall a capias pro fine if the defendant voluntarily appears to resolve the amount owed and resolves it.

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Part IV. DETERMINING INDIGENCE

Judges may use the Federal Poverty Guidelines or the Living Wage Calculator as guidance for an indigence

determination.

REMEMBER: MIND THE GAP: Bearden Creates a

Mandatory Judicial Directive

For fine‐only offenses, there is no statutory means test for determining indigence. Judges have discretion in determining whether a defendant is indigent. (Arts. 45.041, 45.046, & 45.049, C.C.P.)

DETERMINING INDIGENCE (Cont.)

To determine indigence, a court may require a defendant under oath to provide income and asset information.

Example: Application for Time Payment, Extension, or Community Service,2015 TMCEC Forms Book.

When a defendant does not pay all the fine and costs at the time of sentencing, it is important for courts to (1) communicate and (2) document its expectation to the defendant and (3) what the defendant should do if he or she is unable to pay in the manner ordered by the judge.

Example: Admonishment as to Financial Changes, 2015 TMCEC Forms Book.

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In AY 2017, the Discussion was Fixated on “Determining Indigence”

Remember, under the Amended Law being “Indigent” is the Minimum Threshold. It’s Just One of Two Standards.

Remember under Art. 45.0491Courts May Waive All or Part of A Fine orCost IF (1) defendant is indigent or (2) does not have sufficient resources/income to pay all or part of fine or costs or (3)was a child at the time of the offense AND (4) discharging the fine or costs by Community Service (or with extension/installments) would impose an undue hardship on the defendant.

Part V. Notice and the Right to Counsel

“Courts must provide meaningful notice and, in appropriate cases, counsel, when enforcing fines and fees.” Dear Colleague (pp. 5‐6)

VIII. “Meaningful Notice” under Texas Law

NEW REQUIREMENTS FOR PROVIDING NOTICE TO DEFENDANTS

A. Citations must include information on alternatives to full payment of any fine or costs assessed if unable to pay (Art. 14.06(b))

B. No arrest warrant for failure to appear at the initial court setting, UNLESS notice by phone/mail that includes: (Art. 45.014)

• Date/time, within 30‐day period following date of notice, when defendant must appear (may request alternative date/time);

• Name and address of the court with jurisdiction in the case;• Information regarding alternatives to the full payment of any

fine or costs owed by the defendant; and• An explanation of the consequences of defendant’s failure to

appear as required.

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C. Upon receiving a plea of “guilty” or “nolo contendere” and waiver of jury trial, must provide notice of: (Art. 27.14(b))

– the amount of any fine or costs assessed in the case;

– if requested by the defendant, the amount of any appeal bond that the court will approve; and

– information regarding the alternatives to the full payment of any fine or costs assessed, if the defendant is unable to pay.

D. Communication to a defendant from a public or private collection vendor must include: (Art. 103.0031(j))

– notice of the person’s right to enter a plea or to demand trial on any offense; and

– a statement that if the person is unable to pay the full amount that is acceptable to the court to resolve the case, the person should contact the court regarding alternatives to full payment.

When considering the constitutional right to the assistance of counsel, it is CRITICAL to

distinguish between:

Type 1 Type 2

Understanding the “Right to Counsel” (RtC)

RIGHT OF DEFENDANT to RETAIN an Attorney to:• APPEAR for them in

Court• Provide ADVICE and

ASSISTANCE

RIGHT OF DEFENDANT to HAVE an Attorney to:• APPOINTED by the

Court• APPEAR, ADVISE and

ASSIST

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Notice and the Right to Counsel (Cont.)

BE CAREFUL• Courts must guard to ensure that they DO NOT violate Type 1 rights;AND

• In regard to Type 2 rights, know the EXCEPTIONS to the GENERAL RULE.

GENERAL RULE• A municipal judge has no Duty to appoint an attorney to represent an indigent defendant in a Class C misdemeanor. Barcroft v. State, 881 S.W.2d 838 (Tex. App.‐‐Tyler 1994, no pet.).

EXCEPTION: Interest of Justice

An indigent defendant is entitled to have an attorney appointed in any criminal proceeding, if the court concludes the interests of justice require representation. 1.051(c), CCP; AG Op. JM‐977.

While there is no Texas case law, Federal case law suggests that “special circumstances” in which failure to appoint counsel would result in a trial lacking “fundamental fairness.” (e.g., youth and immaturity, Moore v. Michigan, 355 U.S. 155 (1957) and mental illness, Massey v. Moore, 348 U.S. 105 (1954)).

Parting Shot

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What Story Does Your Court’s Data Tell?

• “An Incomplete Picture: State Data and Indigence: While some data is better than none, state and local governments are urged to exercise caution”

– The Recorder: Special Edition (pp. 19‐20)

The Texas ACLU said it is unclear how many people across Texas are jailed for not being able to pay fines and court costs because courts are not required to keep such statistics. Associated Press (November 2016).

Thank You for Your Attention

1

U.S. Department of Justice

Civil Rights Division

Office for Access to Justice

Washington, D.C. 20530

March 14, 2016

Dear Colleague:

The Department of Justice (“the Department”) is committed to assisting state and local

courts in their efforts to ensure equal justice and due process for all those who come before them.

In December 2015, the Department convened a diverse group of stakeholders—judges, court

administrators, lawmakers, prosecutors, defense attorneys, advocates, and impacted

individuals—to discuss the assessment and enforcement of fines and fees in state and local

courts. While the convening made plain that unlawful and harmful practices exist in certain

jurisdictions throughout the country, it also highlighted a number of reform efforts underway by

state leaders, judicial officers, and advocates, and underscored the commitment of all the

participants to continue addressing these critical issues. At the meeting, participants and

Department officials also discussed ways in which the Department could assist courts in their

efforts to make needed changes. Among other recommendations, participants called on the

Department to provide greater clarity to state and local courts regarding their legal obligations

with respect to fines and fees and to share best practices. Accordingly, this letter is intended to

address some of the most common practices that run afoul of the United States Constitution

and/or other federal laws and to assist court leadership in ensuring that courts at every level of

the justice system operate fairly and lawfully, as well as to suggest alternative practices that can

address legitimate public safety needs while also protecting the rights of participants in the

justice system.

Recent years have seen increased attention on the illegal enforcement of fines and fees in

certain jurisdictions around the country—often with respect to individuals accused of

misdemeanors, quasi-criminal ordinance violations, or civil infractions.1 Typically, courts do not sentence defendants to incarceration in these cases; monetary fines are the norm. Yet the harm

1 See, e.g., Civil Rights Division, U.S. Department of Justice, Investigation of the Ferguson Police Department

(Mar. 4, 2015), http://www.justice.gov/crt/about/spl/documents/ferguson_findings_3-4-15.pdf (finding that the

Ferguson, Missouri, municipal court routinely deprived people of their constitutional rights to due process and equal

protection and other federal protections); Brennan Center for Justice, Criminal Justice Debt: A Barrier to Reentry

(2010), available at http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf

(reporting on fine and fee practices in fifteen states); American Civil Liberties Union, In for a Penny: The Rise of

America’s New Debtors’ Prisons (2010), available at https://www.aclu.org/files/assets/InForAPenny_web.pdf

(discussing practices in Louisiana, Michigan, Ohio, Georgia, and Washington state).

http://www.justice.gov/crt/about/spl/documents/ferguson_findings_3-4-15.pdf

http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf

http://www.aclu.org/files/assets/InForAPenny_web.pdf

2

caused by unlawful practices in these jurisdictions can be profound. Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no

danger to the community2; lose their jobs; and become trapped in cycles of poverty that can be

nearly impossible to escape.3 Furthermore, in addition to being unlawful, to the extent that these practices are geared not toward addressing public safety, but rather toward raising revenue, they can cast doubt on the impartiality of the tribunal and erode trust between local governments and

their constituents.4

To help judicial actors protect individuals’ rights and avoid unnecessary harm, we discuss

below a set of basic constitutional principles relevant to the enforcement of fines and fees. These

principles, grounded in the rights to due process and equal protection, require the following:

(1) Courts must not incarcerate a person for nonpayment of fines or fees without first

conducting an indigency determination and establishing that the failure to pay was

willful;

(2) Courts must consider alternatives to incarceration for indigent defendants unable to

pay fines and fees;

(3) Courts must not condition access to a judicial hearing on the prepayment of fines or

fees;

(4) Courts must provide meaningful notice and, in appropriate cases, counsel, when

enforcing fines and fees;

(5) Courts must not use arrest warrants or license suspensions as a means of coercing the

payment of court debt when individuals have not been afforded constitutionally

adequate procedural protections;

(6) Courts must not employ bail or bond practices that cause indigent defendants to

remain incarcerated solely because they cannot afford to pay for their release; and

(7) Courts must safeguard against unconstitutional practices by court staff and private

contractors.

In court systems receiving federal funds, these practices may also violate Title VI of the Civil

Rights Act of 1964, 42 U.S.C. § 2000d, when they unnecessarily impose disparate harm on the

basis of race or national origin.

2 Nothing in this letter is intended to suggest that courts may not preventively detain a defendant pretrial in order to

secure the safety of the public or appearance of the defendant. 3 See Council of Economic Advisers, Issue Brief, Fines, Fees, and Bail: Payments in the Criminal Justice System

that Disproportionately Impact the Poor, at 1 (Dec. 2015), available at

https://www.whitehouse.gov/sites/default/files/page/files/1215_cea_fine_fee_bail_issue_brief.pdf (describing the

disproportionate impact on the poor of fixed monetary penalties, which “can lead to high levels of debt and even

incarceration for failure to fulfil a payment” and create “barriers to successful re-entry after an offense”). 4 See Conference of State Court Administrators, 2011-2012 Policy Paper, Courts Are Not Revenue Centers (2012),

available at https://csgjusticecenter.org/wp-content/uploads/2013/07/2011-12-COSCA-report.pdf.

http://www.whitehouse.gov/sites/default/files/page/files/1215_cea_fine_fee_bail_issue_brief.pdf

https://csgjusticecenter.org/wp-content/uploads/2013/07/2011-12-COSCA-report.pdf

3

As court leaders, your guidance on these issues is critical. We urge you to review court

rules and procedures within your jurisdiction to ensure that they comply with due process, equal

protection, and sound public policy. We also encourage you to forward a copy of this letter to

every judge in your jurisdiction; to provide appropriate training for judges in the areas discussed

below; and to develop resources, such as bench books, to assist judges in performing their duties

lawfully and effectively. We also hope that you will work with the Justice Department, going

forward, to continue to develop and share solutions for implementing and adhering to these

principles.

1. Courts must not incarcerate a person for nonpayment of fines or fees without first

conducting an indigency determination and establishing that the failure to pay was

willful.

The due process and equal protection principles of the Fourteenth Amendment prohibit

“punishing a person for his poverty.” Bearden v. Georgia, 461 U.S. 660, 671 (1983).

Accordingly, the Supreme Court has repeatedly held that the government may not incarcerate an

individual solely because of inability to pay a fine or fee. In Bearden, the Court prohibited the

incarceration of indigent probationers for failing to pay a fine because “[t]o do otherwise would

deprive the probationer of his conditional freedom simply because, through no fault of his own,

he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness

required by the Fourteenth Amendment.” Id. at 672-73; see also Tate v. Short, 401 U.S. 395,

398 (1971) (holding that state could not convert defendant’s unpaid fine for a fine-only offense

to incarceration because that would subject him “to imprisonment solely because of his

indigency”); Williams v. Illinois, 399 U.S. 235, 241-42 (1970) (holding that an indigent

defendant could not be imprisoned longer than the statutory maximum for failing to pay his fine).

The Supreme Court recently reaffirmed this principle in Turner v. Rogers, 131 S. Ct. 2507

(2011), holding that a court violates due process when it finds a parent in civil contempt and jails

the parent for failure to pay child support, without first inquiring into the parent’s ability to pay.

Id. at 2518-19.

To comply with this constitutional guarantee, state and local courts must inquire as to a

person’s ability to pay prior to imposing incarceration for nonpayment. Courts have an

affirmative duty to conduct these inquiries and should do so sua sponte. Bearden, 461 U.S. at

671. Further, a court’s obligation to conduct indigency inquiries endures throughout the life of a

case. See id. at 662-63. A probationer may lose her job or suddenly require expensive medical

care, leaving her in precarious financial circumstances. For that reason, a missed payment

cannot itself be sufficient to trigger a person’s arrest or detention unless the court first inquires

anew into the reasons for the person’s non-payment and determines that it was willful. In

addition, to minimize these problems, courts should inquire into ability to pay at sentencing,

when contemplating the assessment of fines and fees, rather than waiting until a person fails to

pay.

4

Under Bearden, standards for indigency inquiries must ensure fair and accurate

assessments of defendants’ ability to pay. Due process requires that such standards include both

notice to the defendant that ability to pay is a critical issue, and a meaningful opportunity for the

defendant to be heard on the question of his or her financial circumstances. See Turner, 131 S.

Ct. at 2519-20 (requiring courts to follow these specific procedures, and others, to prevent

unrepresented parties from being jailed because of financial incapacity). Jurisdictions may

benefit from creating statutory presumptions of indigency for certain classes of defendants—for

example, those eligible for public benefits, living below a certain income level, or serving a term

of confinement. See, e.g., R.I. Gen. Laws § 12-20-10 (listing conditions considered “prima facie

evidence of the defendant’s indigency and limited ability to pay,” including but not limited to

“[q]ualification for and/or receipt of” public assistance, disability insurance, and food stamps).

2. Courts must consider alternatives to incarceration for indigent defendants unable to pay

fines and fees.

When individuals of limited means cannot satisfy their financial obligations, Bearden

requires consideration of “alternatives to imprisonment.” 461 U.S. at 672. These alternatives

may include extending the time for payment, reducing the debt, requiring the defendant to attend

traffic or public safety classes, or imposing community service. See id. Recognizing this

constitutional imperative, some jurisdictions have codified alternatives to incarceration in state

law. See, e.g., Ga. Code Ann. § 42-8-102(f)(4)(A) (2015) (providing that for “failure to report to

probation or failure to pay fines, statutory surcharges, or probation supervision fees, the court

shall consider the use of alternatives to confinement, including community service”); see also

Tate, 401 U.S. at 400 n.5 (discussing effectiveness of fine payment plans and citing examples

from several states). In some cases, it will be immediately apparent that a person is not and will

not likely become able to pay a monetary fine. Therefore, courts should consider providing

alternatives to indigent defendants not only after a failure to pay, but also in lieu of imposing

financial obligations in the first place.

Neither community service programs nor payment plans, however, should become a

means to impose greater penalties on the poor by, for example, imposing onerous user fees or

interest. With respect to community service programs, court officials should consider

delineating clear and consistent standards that allow individuals adequate time to complete the

service and avoid creating unreasonable conflicts with individuals’ work and family obligations.

In imposing payment plans, courts should consider assessing the defendant’s financial resources

to determine a reasonable periodic payment, and should consider including a mechanism for

defendants to seek a reduction in their monthly obligation if their financial circumstances

change.

3. Courts must not condition access to a judicial hearing on prepayment of fines or fees.

State and local courts deprive indigent defendants of due process and equal protection if

they condition access to the courts on payment of fines or fees. See Boddie v. Connecticut, 401

U.S. 371, 374 (1971) (holding that due process bars states from conditioning access to

5

compulsory judicial process on the payment of court fees by those unable to pay); see also

Tucker v. City of Montgomery Bd. of Comm’rs, 410 F. Supp. 494, 502 (M.D. Ala. 1976) (holding that the conditioning of an appeal on payment of a bond violates indigent prisoners’ equal protection rights and “‘has no place in our heritage of Equal Justice Under Law’” (citing Burns v.

Ohio, 360 U.S. 252, 258 (1959)).5

This unconstitutional practice is often framed as a routine administrative matter. For

example, a motorist who is arrested for driving with a suspended license may be told that the

penalty for the citation is $300 and that a court date will be scheduled only upon the completion

of a $300 payment (sometimes referred to as a prehearing “bond” or “bail” payment). Courts

most commonly impose these prepayment requirements on defendants who have failed to

appear, depriving those defendants of the opportunity to establish good cause for missing court.

Regardless of the charge, these requirements can have the effect of denying access to justice to

the poor.

4. Courts must provide meaningful notice and, in appropriate cases, counsel, when

enforcing fines and fees.

“An elementary and fundamental requirement of due process in any proceeding which is

to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them an opportunity to present their

objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950); see also

Turner, 131 S. Ct. at 2519 (discussing the importance of notice in proceedings to enforce a child

support order). Thus, constitutionally adequate notice must be provided for even the most minor

cases. Courts should ensure that citations and summonses adequately inform individuals of the

precise charges against them, the amount owed or other possible penalties, the date of their court

hearing, the availability of alternate means of payment, the rules and procedures of court, their

rights as a litigant, or whether in-person appearance is required at all. Gaps in this vital

information can make it difficult, if not impossible, for defendants to fairly and expeditiously

resolve their cases. And inadequate notice can have a cascading effect, resulting in the

defendant’s failure to appear and leading to the imposition of significant penalties in violation of

the defendant’s due process rights.

Further, courts must ensure defendants’ right to counsel in appropriate cases when

enforcing fines and fees. Failing to appear or to pay outstanding fines or fees can result in

incarceration, whether through the pursuit of criminal charges or criminal contempt, the

imposition of a sentence that had been suspended, or the pursuit of civil contempt proceedings.

The Sixth Amendment requires that a defendant be provided the right to counsel in any criminal

proceeding resulting in incarceration, see Scott v. Illinois, 440 U.S. 367, 373 (1979); Argersinger

v. Hamlin, 407 U.S. 25, 37 (1972), and indeed forbids imposition of a suspended jail sentence on

a probationer who was not afforded a right to counsel when originally convicted and sentenced,

5 The Supreme Court reaffirmed this principle in Little v. Streater, 452 U.S. 1, 16-17 (1981), when it prohibited

conditioning indigent persons’ access to blood tests in adversarial paternity actions on payment of a fee, and in

M.L.B. v. S.L.J., 519 U.S. 102, 107 (1996), when it prohibited charging filing fees to indigent persons seeking to

appeal from proceedings terminating their parental rights.

6

see Alabama v. Shelton, 535 U.S. 654, 662 (2002). Under the Fourteenth Amendment,

defendants likewise may be entitled to counsel in civil contempt proceedings for failure to pay fines or fees. See Turner, 131 S. Ct. at 2518-19 (holding that, although there is no automatic right to counsel in civil contempt proceedings for nonpayment of child support, due process is violated when neither counsel nor adequate alternative procedural safeguards are provided to

prevent incarceration for inability to pay).6

5. Courts must not use arrest warrants or license suspensions as a means of coercing the

payment of court debt when individuals have not been afforded constitutionally adequate

procedural protections.

The use of arrest warrants as a means of debt collection, rather than in response to public

safety needs, creates unnecessary risk that individuals’ constitutional rights will be violated.

Warrants must not be issued for failure to pay without providing adequate notice to a defendant,

a hearing where the defendant’s ability to pay is assessed, and other basic procedural protections.

See Turner, 131 S. Ct. at 2519; Bearden, 461 U.S. at 671-72; Mullane, 339 U.S. at 314-15.

When people are arrested and detained on these warrants, the result is an unconstitutional deprivation of liberty. Rather than arrest and incarceration, courts should consider less harmful

and less costly means of collecting justifiable debts, including civil debt collection.7

In many jurisdictions, courts are also authorized—and in some cases required—to initiate

the suspension of a defendant’s driver’s license to compel the payment of outstanding court

debts. If a defendant’s driver’s license is suspended because of failure to pay a fine, such a

suspension may be unlawful if the defendant was deprived of his due process right to establish

inability to pay. See Bell v. Burson, 402 U.S. 535, 539 (1971) (holding that driver’s licenses

“may become essential in the pursuit of a livelihood” and thus “are not to be taken away without

that procedural due process required by the Fourteenth Amendment”); cf. Dixon v. Love, 431

U.S. 105, 113-14 (1977) (upholding revocation of driver’s license after conviction based in part

on the due process provided in the underlying criminal proceedings); Mackey v. Montrym, 443

U.S. 1, 13-17 (1979) (upholding suspension of driver’s license after arrest for driving under the

influence and refusal to take a breath-analysis test, because suspension “substantially served” the

government’s interest in public safety and was based on “objective facts either within the

personal knowledge of an impartial government official or readily ascertainable by him,” making

the risk of erroneous deprivation low). Accordingly, automatic license suspensions premised on

determinations that fail to comport with Bearden and its progeny may violate due process.

6 Turner’s ruling that the right to counsel is not automatic was limited to contempt proceedings arising from failure

to pay child support to a custodial parent who is unrepresented by counsel. See 131 S. Ct. at 2512, 2519. The Court

explained that recognizing such an automatic right in that context “could create an asymmetry of representation.”

Id. at 2519. The Court distinguished those circumstances from civil contempt proceedings to recover funds due to

the government, which “more closely resemble debt-collection proceedings” in which “[t]he government is likely to

have counsel or some other competent representative.” Id. at 2520. 7 Researchers have questioned whether the use of police and jail resources to coerce the payment of court debts is

cost-effective. See, e.g., Katherine Beckett & Alexes Harris, On Cash and Conviction: Monetary Sanctions as

Misguided Policy, 10 CRIMINOLOGY & PUB. POL’Y 505, 527-28 (2011). This strategy may also undermine public

safety by diverting police resources and stimulating public distrust of law enforcement.

7

Even where such suspensions are lawful, they nonetheless raise significant public policy

concerns. Research has consistently found that having a valid driver’s license can be crucial to

individuals’ ability to maintain a job, pursue educational opportunities, and care for families.8 At

the same time, suspending defendants’ licenses decreases the likelihood that defendants will resolve pending cases and outstanding court debts, both by jeopardizing their employment and

by making it more difficult to travel to court, and results in more unlicensed driving. For these reasons, where they have discretion to do so, state and local courts are encouraged to avoid

suspending driver’s licenses as a debt collection tool, reserving suspension for cases in which it

would increase public safety.9

6. Courts must not employ bail or bond practices that cause indigent defendants to remain

incarcerated solely because they cannot afford to pay for their release.

When indigent defendants are arrested for failure to make payments they cannot afford,

they can be subjected to another independent violation of their rights: prolonged detention due to

unlawful bail or bond practices. Bail that is set without regard to defendants’ financial capacity

can result in the incarceration of individuals not because they pose a threat to public safety or a

flight risk, but rather because they cannot afford the assigned bail amount.

As the Department of Justice set forth in detail in a federal court brief last year, and as

courts have long recognized, any bail practices that result in incarceration based on poverty

violate the Fourteenth Amendment. See Statement of Interest of the United States, Varden v.

City of Clanton, No. 2:15-cv-34-MHT-WC, at 8 (M.D. Ala., Feb. 13, 2015) (citing Bearden, 461

U.S. at 671; Tate, 401 U.S. at 398; Williams, 399 U.S. at 240-41).10 Systems that rely primarily

on secured monetary bonds without adequate consideration of defendants’ financial means tend

to result in the incarceration of poor defendants who pose no threat to public safety solely

because they cannot afford to pay.11 To better protect constitutional rights while ensuring

defendants’ appearance in court and the safety of the community, courts should consider transitioning from a system based on secured monetary bail alone to one grounded in objective risk assessments by pretrial experts. See, e.g., D.C. Code § 23-1321 (2014); Colo. Rev. Stat. 16-

8 See, e.g., Robert Cervero, et al., Transportation as a Stimulus of Welfare-to-Work: Private versus Public Mobility,

22 J. PLAN. EDUC. & RES. 50 (2002); Alan M. Voorhees, et al., Motor Vehicles Affordability and Fairness Task

Force: Final Report, at xii (2006), available at http://www.state.nj.us/mvc/pdf/About/AFTF_final_02.pdf (a study

of suspended drivers in New Jersey, which found that 42% of people lost their jobs as a result of the driver’s license

suspension, that 45% of those could not find another job, and that this had the greatest impact on seniors and low-

income individuals). 9 See Am. Ass’n of Motor Veh. Adm’rs, Best Practices Guide to Reducing Suspended Drivers, at 3 (2013),

available at http://www.aamva.org/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=3723&libID=3709

(recommending that “legislatures repeal state laws requiring the suspension of driving privileges for non-highway

safety related violations” and citing research supporting view that fewer driver suspensions for non-compliance with

court requirements would increase public safety). 10 The United States’ Statement of Interest in Varden is available at

http://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/02/13/varden statement_

of_interest.pdf. 11 See supra Statement of the United States, Varden, at 11 (citing Timothy R. Schnacke, U.S. Department of Justice,

National Institute of Corrections, FUNDAMENTALS OF BAIL: A RESOURCE GUIDE FOR PRETRIAL PRACTITIONERS AND

A FRAMEWORK FOR AMERICAN PRETRIAL REFORM, at 2 (2014), available at http://nicic.gov/library/028360).

http://www.state.nj.us/mvc/pdf/About/AFTF_final_02.pdf

http://www.aamva.org/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=3723&libID=3709

http://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/02/13/varden

http://nicic.gov/library/028360)

8

4-104 (2014); Ky. Rev. Stat. Ann. § 431.066 (2015); N.J. S. 946/A1910 (enacted 2015); see also

18 U.S.C. § 3142 (permitting pretrial detention in the federal system when no conditions will

reasonably assure the appearance of the defendant and safety of the community, but cautioning

that “[t]he judicial officer may not impose a financial condition that results in the pretrial

detention of the person”).

7. Courts must safeguard against unconstitutional practices by court staff and private

contractors.

In many courts, especially those adjudicating strictly minor or local offenses, the judge or

magistrate may preside for only a few hours or days per week, while most of the business of the

court is conducted by clerks or probation officers outside of court sessions. As a result, clerks

and other court staff are sometimes tasked with conducting indigency inquiries, determining

bond amounts, issuing arrest warrants, and other critical functions—often with only perfunctory

review by a judicial officer, or no review at all. Without adequate judicial oversight, there is no

reliable means of ensuring that these tasks are performed consistent with due process and equal

protection. Regardless of the size of the docket or the limited hours of the court, judges must

ensure that the law is followed and preserve “both the appearance and reality of fairness,

generating the feeling, so important to a popular government, that justice has been done.”

Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (internal quotation marks omitted); see also

American Bar Association, MODEL CODE OF JUDICIAL CONDUCT, Canon 2, Rules 2.2, 2.5, 2.12.

Additional due process concerns arise when these designees have a direct pecuniary

interest in the management or outcome of a case—for example, when a jurisdiction employs

private, for-profit companies to supervise probationers. In many such jurisdictions, probation

companies are authorized not only to collect court fines, but also to impose an array of

discretionary surcharges (such as supervision fees, late fees, drug testing fees, etc.) to be paid to

the company itself rather than to the court. Thus, the probation company that decides what

services or sanctions to impose stands to profit from those very decisions. The Supreme Court

has “always been sensitive to the possibility that important actors in the criminal justice system

may be influenced by factors that threaten to compromise the performance of their duty.” Young

v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 810 (1987). It has expressly prohibited

arrangements in which the judge might have a pecuniary interest, direct or indirect, in the

outcome of a case. See Tumey v. Ohio, 273 U.S. 510, 523 (1927) (invalidating conviction on the

basis of $12 fee paid to the mayor only upon conviction in mayor’s court); Ward v. Village of

Monroeville, Ohio, 409 U.S. 57, 61-62 (1972) (extending reasoning of Tumey to cases in which

the judge has a clear but not direct interest). It has applied the same reasoning to prosecutors,

holding that the appointment of a private prosecutor with a pecuniary interest in the outcome of a

case constitutes fundamental error because it “undermines confidence in the integrity of the

criminal proceeding.” Young, 481 U.S. at 811-14. The appointment of a private probation

company with a pecuniary interest in the outcome of its cases raises similarly fundamental

concerns about fairness and due process.

* * * * *

9

The Department of Justice has a strong interest in ensuring that state and local courts

provide every individual with the basic protections guaranteed by the Constitution and other

federal laws, regardless of his or her financial means. We are eager to build on the December

2015 convening about these issues by supporting your efforts at the state and local levels, and we

look forward to working collaboratively with all stakeholders to ensure that every part of our

justice system provides equal justice and due process.

Sincerely,

Vanita Gupta

Principal Deputy Assistant Attorney General

Civil Rights Division

Lisa Foster

Director

Office for Access to Justice

FINES, FEES, COSTS, INDIGENCE, AND RELATED ISSUES

Developed by the Texas Municipal Courts Education Center Funded by a grant from the Texas Court of Criminal Appeals

AY 18

v. 2

BAIL As a general rule in Texas, bail may not be denied.

4

It is important to distinguish bail set by a magistrate and bail set by a judge. It is well established in Texas case law that ability or inability to make bail

does not, alone, control in determining the amount; it is an element to be

considered along with the others in Art. 17.15, C.C.P.5

While bail should be sufficiently high to give reasonable assurance that the

defendant will

appear, it is not to be

used as an

instrument of

oppression. A defendant in jail

charged with a Class

C misdemeanor

must be released on

personal bond or

reduction of bail if

the State is not ready

for trial within 5

days of

commencement of

detention.6

COURT ACTIONS ON NON PAYMENT

PERMISSIBLE ACTIONS Payment Plan or Extension of

Time to Pay

Community Service Waiver of All or Part of Fines or

Costs if Alternative Means

Impose an Undue Hardship7

Capias Pro Fine (after a show

cause hearing)8

Commitment Hearing Suspension of Driver's License

9

Refusal to Register a Motor

Vehicle10

Collection Services11

Execution Against Property in

Same Manner as in a Civil Suit12

IMPERMISSIBLE ACTIONS

Holding Defendant in Jail on a Capias

Pro Fine Beyond the Business Day

Following the Date of the Arrest

Without the Commitment

Requirements in Art. 45.046, C.C.P.

Commitment to Jail Without

Providing an Opportunity for

Community Service or Without a

Commitment Hearing and Written

Determination under Art. 45.046,

C.C.P.

Requiring a Bond to See the Judge

Refusal to Accept Filings

Altering a Final Judgment (unless by a

nunc pro tunc order for a clerical

error)

1. Article 45.041(a-1), C.C.P.

2. Article 45.041(b-2), C.C.P.

3. Article 45.0491a), C.C.P.

4. Art. I, Sec. 2, Texas Constitution

5. Ex Parte Bufkin, 553 S.W.2d 116,

118 (Tex. Crim. App. 1977).

6. Article 17.151, C.C.P.

7. Article 45.0491, C.C.P.5.

8. Article 45.045(a-2), C.C.P.

9. Article 45.046, C.C.P.

10. Section 706.002, Trans. Code.

11. Section 702.003, Trans. Code.

12. Article 45.047, C.C.P.

IMPOSING FINES, FEES, & COURT COSTS

Make meaningful use of the fine range because after a judgment is final, there is

no statutory authorization to change the fine amount.

If a defendant enters a plea in open court, the judge shall inquire whether the

defendant has sufficient resources or income to immediately pay all or part of

the fines and costs, and upon a determination that the defendant does not, the

judge shall determine whether the fine and costs should be (1) required to be paid at

some later date or in a specified portion at designated intervals; (2) discharged

by performing community service; waived in full or in part; or (3) any combination of

those methods.1

For defendants who do not enter a plea in open court, if the judge determines that the

defendant is unable to immediately pay the fine and costs, the judge shall allow the

defendant to pay the fine and costs in specified portions at designated intervals.2

A judge may require any defendant who is determined by the court to have

insufficient resources or income to pay a fine or costs to discharge all or part of

the fine or costs by performing community service.3

DETERMINING INDIGENCE

Judges have discretion in determining whether a defendant is indigent.

Judges may use the Federal Poverty Guidelines or the Living Wage Calculator as

guidance for an indigence determination.

To determine indigence, a court may require a defendant under oath to provide income and asset information.

When a defendant does not pay all the fine and costs at the time of sentencing, it is important for courts to communicate and

document its expectation to the defendant and what the defendant should do if he or she is unable to pay in the manner

ordered by the judge.

NEW PROCEDURES RELATED TO FINES, FEES, COSTS, AND INDIGENCE

Adapted from the Texas Office of Court Administration Bench Card for Judicial Processes Relating to the Collection of Fines and Costs

All statutory references are to the Code of Criminal Procedure.

I. NEW REQUIREMENT FOR ASSESSING ABILITY TO PAY FOR OPEN COURT PLEAS (Art. 45.041)

A. When imposing a fine and costs on defendant who enters a plea in open court, judge required to inquire whether defendant

has sufficient resources/income to immediately pay all or part of the fine and costs.

B. If judge determines defendant does not have sufficient resources/income, required to determine whether fine/costs should be:

o required to be paid at some later date or in a specified portion at designated intervals;

o discharged through the performance of community service;

o waived in full or part; or satisfied through any combination of these methods.

II. NEW WAIVER OF PAYMENT OPTION; PRESUMPTION OF INDIGENCE FOR CERTAIN CHILDREN (Art. 45.0491)

A. Courts may waive all or part of a fine or costs and must no longer wait for a defendant to default if:

o court determines defendant is indigent or does not have sufficient resources/income to pay all or part of fine or costs or was a child at the time of the offense; and

o discharging the fine or costs through community service (or extension/installments) would impose an undue hardship.

B. A defendant is presumed to be indigent or not have sufficient resources/income to pay all or part of the fine or costs if:

o in conservatorship of the Department of Family and Protective Services or was at the time of the offense; or

o designated as a homeless child or youth or an unaccompanied youth, or was so designated at the time of the offense.

III. NEW JAIL CREDIT RATE (Art. 45.048)

A defendant should be given credit of not less than $100 for each period of confinement (8-24 hours as determined by judge).

IV. NEW REQUIREMENTS FOR ISSUING A CAPIAS PRO FINE (Art. 45.045)

Court may not issue a capias pro fine unless the court first holds a hearing on the defendant’s ability to pay, and:

o the defendant fails to appear at the hearing; or

o based on evidence presented at the hearing, the court determines that the capias pro fine should be issued.

V. NEW REQUIREMENTS AND OPTIONS FOR COMMUNITY SERVICE (Arts. 45.049, 45.0492)

A. Any order requiring a defendant’s performance of community service must:

o specify the number of hours to be performed; and

o include the date by which a defendant must submit proof of completion of the community service hours to the court.

B. Community service options expanded to include (besides service provided to a governmental entity or certain nonprofits):

o attending work and job skills training program, preparatory class for the GED, alcohol or drug abuse program, rehabilitation program, counseling program, mentoring program, or any similar activity;

o attending a tutoring program (for certain juvenile defendants only); and o performing community service for an educational institution or any organization that provides services to the general public

that enhances social welfare and the well-being of the community.

C. 16-hour limit on community service performed each week, unless additional hours will not impose undue hardship.

D. Credit for each eight hours of community service performed is $100 per day.

VI. NEW PROVISIONS RELATING TO BAIL, BOND, AND PRETRIAL RELEASE IN A MUNICIPAL COURT (Arts. 17.42, 45.016)

A. Post-charging, judge may require defendant to give personal bond (without assessment of personal bond fee); however, the

judge may not, either instead of or in addition to personal bond, require defendant to post a bail bond (cash or surety) unless:

o the defendant fails to appear; and

o the judge determines that:

the defendant has sufficient resources or income to give a bail bond; and

a bail bond is necessary to secure the defendant’s appearance in court.

B. If defendant does not post a required bail bond within 48 hours of the court’s order, judge must reconsider bail bond and

presume defendant does not have sufficient resources/income to give the bond; the judge may then require a personal bond.

VII. NEW REQUIREMENT TO RECALL AN ARREST WARRANT FOR FAILURE TO APPEAR AND A CAPIAS PRO FINE

(Arts. 45.014, 45.045)

A. If defendant voluntarily appears and makes a good faith effort to resolve warrant before it is executed, a judge must recall it.

B. The court must recall capias pro fine if defendant voluntarily appears to resolve the amount owed and resolves it.

VIII. NEW REQUIREMENTS FOR PROVIDING NOTICE TO DEFENDANTS

A. Citations must include information on alternatives to full payment of any fine or costs assessed if unable to pay (Art. 14.06(b))

B. No arrest warrant for failure to appear at the initial court setting, unless notice by phone/mail that includes: (Art. 45.014)

o Date/time, within 30-day period following date of notice, when defendant must appear (may request alternative date/time);

o name and address of the court with jurisdiction in the case;

o information regarding alternatives to the full payment of any fine or costs owed by the defendant; and

o an explanation of the consequences of defendant’s failure to appear as required.

C. Upon receiving a plea of “guilty” or “nolo contendere” and waiver of jury trial, must provide notice of: (Art. 27.14(b))

o the amount of any fine or costs assessed in the case;

o if requested by the defendant, the amount of any appeal bond that the court will approve; and

o information regarding the alternatives to the full payment of any fine or costs assessed, if the defendant is unable to pay.

D. Communication to a defendant from a public or private collection vendor must include: (Art. 103.0031(j))

o notice of the person’s right to enter a plea or to demand trial on any offense; and

o a statement that if the person is unable to pay the full amount that is acceptable to the court to resolve the case, the person should

contact the court regarding alternatives to full payment.

What if I Can’t Pay?

You may be concerned if you have been charged with an offense, you do not wish to contest the charge,

and you do not have an ability to pay fines, fees, and court costs at this time. If this is the case, it is very

important to respond to the charge and to continue communication with the court. Failure to respond

to the charge could lead to additional charges filed, additional fees owed, a hold on your driver’s license

or registration, and/or a warrant issued for your arrest. Timely responses and continued communication

with the court will minimize charges filed and fines or fees owed. Additionally, taking care of fine-only

misdemeanor charges will prevent you from being arrested related to the charges. The information

below is provided to give you more information related to the laws and protection provided for those

who have an inability to pay.

Indigence

• If a judges determines that you have an inability to pay due to a lack of resources, the judge will find you to be indigent. Defendants found to be indigent must be given alternative means to discharge their judgments. While there is no definition in the law for indigence, the judge may make a determination by examining your sources of income and your expenses. Helpful information could include pay stubs and bank statements as well as information showing that you receive federal or state assistance.

Alternative Means

• There are currently three alternative means defined under Texas law.

• Installment Payments - The judge may allow you to pay your fines and costs over a period of time at an amount that is manageable to you. Defendants that pay any amount more than 30 days after judgment are required by state law to pay an additional $25 time payment fee. This amount would be added to the total amount owed on your judgment.

• Community Service - A judge may order an indigent defendant to discharge a judgment through community service. At least $50 of your judgment would be discharged for each 8 hours of work you perform for an approved governmental agency or nonprofit organization.

• Tutoring - If you are a child (under the age of 17) who has been charged with a crime committed on the school grounds where you are enrolled, the judge may allow you to discharge your judgment by completing tutoring.

Waiver of Fines and Costs

• Judges may not waive fines and costs as an alternative means of payment. Only after a defendant has defaulted in payment, if the judge determines that the defendant is either indigent or a child, and that community service would impose an undue hardship, may the judge may waive payment of a fine or costs imposed.

What if I'm not Indigent?

• If you have an inability to pay right now, but you are not indigent, the judge may still allow you to pay your judgment at a later date or in installment payments.

Evidence of Indigence

Anytown Municipal Court

During your hearing, you will be asked to present applicable evidence below and testify regarding your financial status. The list of documents below is a comprehensive list of financial information which allows the judge to fully review your ability to pay. No copies will be duplicated or retained as a portion of your court record.

DEFENDANT INFORMATION

Date: Cause #(s)

Name:

Phone#:

Address:

City/ST/Zip:

Income tax return for year immediately preceding your court date

Banking statements for the previous 3 months

Pay stubs from the previous 3 months

Proof of unemployment disposition and benefit, if any

Proof of Social Security Income for any household member

Proof of child support or nonpayment of child support

Proof of utility expenses including electric, gas, water, telephone, garbage, cable, internet, etc.

Proof of housing expense including mortgage payment or rental agreement

Proof of vehicle lease, ownership or other expense related to transportation

Proof of health insurance receipts and other relative medical information

Proof of any governmental financial supplements and assistance including food, housing, and

Medicare subsidies

Proof of private grants or donations including individual payments made other persons

Editor’s Note: This list is only a suggested list of examples a court can use to obtain as much information from the defendant during a hearing about their ability to pay. You may want to remove or add items to suit your individual court’s needs.

BRING ANY OF THE FOLLOWING DOCUMENTS TO YOUR HEARING: *It is important to provide the court with as much detail as possible regarding your ability to pay your fines/costs.

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- Living Wage Calculator A rt icles A b o u t Search for a state, city, or metro area 0.

Living Wage Calculation for Austin- Round Rock, TX The li vin g w age sh ow n is the h ourl y ra te tha t an individual must earn to support their family, if they are the sole provider and are working full-time (2080hours per year). All values

are per adult in a family unless otherwise noted. The state minimum wage is the same for all individuals, regardless of how many dependents they may have. The poverty rate is

typically quoted as gross annual income. We have converted it to an hourly wage for the sake of comparison.

For further detail, please reference the technical documentation here.

2 Adults 2 Adults 2 Adults

1 Adult 1 Adult 1 Adult 2 Adults (One Working) (One Working) (One Working) 2 Adults 2 Adults 2 Adults

Hourl y Wages 1 Adult 1 Child 2 Children 3 Children (One Working) 1 Child 2 Children 3 Children 2 Adults 1 Child 2 Children 3 Children

Living Wage $10.72 $22.64 $26.22 $32.50 $17.96 $2206 $24.38 $27.82 $8.48 $12.45 $14.32 $16.76

Poverty Wage $5.00 $7.00 $10.00 $11.00 $7.00 $10.00 $11.00 $1300 $3.00 $5.00 $5.00 $6.00

Minimum Wage $7.25 $7.25 $7.25 $7.25 $7.25 $7.25 $7.25 $7.25 $7.25 $7.25 $7.25 $7.25

Typical Expenses The se figure s show the in dividual expenses that went into the living wage estimate. Their values vary by family size, composition, and the current location.

2 Adults 2 Adults 2 Adults

Annual 1 Adult 1 Adult 1 Adult 2 Adults (One Working) (One Working) (One Working) 2 Adults 2 Adults 2 Adults

Expenses 1 Adult 1 Child 2 Children 3 Children (One Working) 1 Child 2 Children 3 Children 2 Adults 1 Child 2 Children 3 Children

Food $3,011 $4,431 $6,652 $8,834 $5,521 $6,864 $8,844 $10,776 $5,521 $6,864 $8,844 $10,776

Child Care $0 $5,206 $7,859 $10,512 $0 $0 $0 $0 $0 $5,206 $7,859 $10,512

Medical $2,119 $7,074 $6,875 $6,843 $5,177 $6,875 $6,843 $6,958 $5,177 $6,875 $6,843 $6,958

Housing $8,172 $12,600 $12,600 $17,052 $10,008 $12,600 $12,600 $17,052 $8,172 $12,600 $12,600 $17,052

Transportation $4,290 $8, 467 $9,593 $11,299 $8, 467 $9,593 $11,299 $11, 405 $8, 467 $9,593 $11,299 $11, 405

Other $2,146 $3,894 $4,682 $5,290 $3,894 $4,682 $5,290 $5,013 $3,894 $4,682 $5,290 $5,013

Required $19,738 $41,672 $48,261 $59,831 $33,066 $40,614 $44,877 $51,205 $31,230 $45,821 $52,736 $61,717

annual income

after taxes

Annual taxes $2,564 $5,413 $6,269 $7,772 $4,295 $5,276 $5,829 $6,652 $4,057 $5,952 $6,850 $8,017

Required $22,302 $47,085 $54,530 $67,603 $37,362 $45,890 $50,706 $57,856 $35,287 $51,773 $59,587 $69,734

annual income

before taxes

Typical Annual Salaries The se are the typical annual salaries for various professions in this location.

INDIGENCE,

COMMUNITY

SERVICE,

PAYMENT

PLANS, & JAIL

CREDIT

INDIGENCE, COMMUNITY

SERVICE, PAYMENT PLANS

& JAIL CREDIT

Table of Contents

Admonishment as to Financial Changes ...................................... 182

Application for Time Payment, Extension, Community

Service or Waiver .................................................................... 183

Installment Agreement Order ...................................................... 187

Schedule of Payments for Installment Agreement ....................... 188

Community Service Order ........................................................... 189

Community Service Time Sheet .................................................. 190

Waiver of Payment of Fine and Costs for Certain

Defendants and for Children .................................................... 191

Order Waiving Surcharges for Indigent Defendant ..................... 192

Finding of Indigence for Purposes of Section 706.006, T.C.

(OmniBase Administrative Fee) ............................................. 193

Incarcerated Jail Credit Response Letter ..................................... 194

Defendant’s Motion to Lay Out Fine in Jail ................................ 195

Defendant’s Refusal to Discharge

Fine or Costs by Performing Community Service ....................... 196

INDIGENCE, COMMUNITY SERVICE, PAYMENT PLANS, & JAIL CREDIT 11/17 TMCEC 2017 FORMS BOOK 182

ADMONISHMENT AS TO FINANCIAL CHANGES

CAUSE NUMBER(S):

STATE OF TEXAS § IN THE MUNICIPAL COURT

VS. § CITY OF

§ COUNTY, TEXAS

ALL DEFENDANTS unable to pay the ENTIRE FINE AND COURT COSTS WHEN SENTENCED are

REQUIRED to CAREFULLY READ and ACKNOWLEDGE the following:

TODOS los DEFENDIENTES sin capacidad de pagar LA MULTA COMPLETA Y LOS COSTOS de CORTE despues de la

sentencia, NECESITARAN LEER completamente y RECONOCER lo siguente:

I, the undersigned, acknowledge that until my fines and courts costs are paid in full, I agree to notify the

Court of any changes in my personal financial situation that will likely interfere with my ability to pay

the fine and court costs in the manner ordered by the Judge.

Yo, el infrascrito, reconozco que hasta que mis multas y el costo de corte son completamente pagados yo estoy de

acuerdo en notificar a este juzgado de cualquier cambio en mi situacion financiera o personal que interfiera con mi

capacidad de pagar la multa y costos de corte en la manera ordenada por el Juez.

It is my responsibility to keep the Court informed of my ability to pay the fine and court costs. It is my

responsibility to keep the Court informed in the event of financial hardship.

Es mi responsabilidad de informar a este juzgado de mi capacidad de pagar la multa y los costos de la corte. Es mi

responsabilidad de informar a este juzgado en caso de dificultades economicas.

Depending on the situation, I understand that the Judge may be able to offer me other ways to pay or

earn credit towards my fine and court costs. For the Judge to consider such circumstances, and to

avoid the possibility of being arrested, I am required to provide timely and sufficient proof to the Court.

Dependiendo en la situacion, yo comprendo que el juez podra ofrecerme otras maneras de recivir or ganar credito hacia

la multa y los costos de corte. Para que el juez considere la circumstancia, y para evitar la posibilidad de ser detenido, yo

necesito proveer suficientes y oportunas pruebas a este juzgado.

Defendant’s Signature/Signatura de Defendiente

Signature by Witness

(Court Clerk, Court Administrator, or Other Court Staff)

This the day of , 20 .


APPLICATION FOR TIME PAYMENT, EXTENSION, COMMUNITY SERVICE, OR WAIVER (Page 1 of 4)

CAUSE NUMBER(S):

STATE OF TEXAS IN THE MUNICIPAL COURT

VS. CITY OF

COUNTY, TEXAS

INITIAL ALL THAT APPLY.

The Court has advised me that I am responsible for satisfying the judgment and sentence:

in the amount of $ in Cause Number ;

in the amount of $ in Cause Number ;

in the amount of $ in Cause Number ; and

in the amount of $ in Cause Number .

I assert that I am unable to pay the fine and costs immediately and that the following information is documentation

that I have insufficient resources or income to pay today.

I request that the Court extend the payment to a later date.

I request that the Court grant a time payment plan.

I request that I be able to discharge the fine and costs by performing community service, because I have no resources to

pay and I am unable to pay the fine and costs.

I have been determined to be indigent by the federal government and I am receiving or I am eligible to receive assistance

under a federal program. Name of program: .

APPLICATION FOR TIME PAYMENT, EXTENSION, COMMUNITY SERVICE, OR WAIVER

Name: Telephone Number:

Address:

Employer: Job Title:

Employer's Address:

Salary: $ per Employer's Telephone Number:

Marital Status (Check One): Married Single Divorced Widowed

Spouse's Name: Spouse's Salary: $ per

Spouse's Employer: Spouse's Job Title:

List the source and amount of any other income you receive: $

List all your dependents, their ages, and their relationship to you:

Your residence is (Check One): Rented Owned Rent-Free

LIST ALL BANK ACCOUNTS IN YOUR NAME OR FROM WHICH YOU MAY WITHDRAW FUNDS:

Name of Institution Address of Institution Type of Account Account Balance



ESTIMATE YOUR AVERAGE CURRENT MONTHLY EXPENSES FOR YOU AND YOUR FAMILY:

a. Home mortgage payment, rent, or lot rental for trailer: $

b. Routine home maintenance: $

c. Utilities (electricity, water, gas, telephone): $

d. Food and sundries: $

e. Clothing: $

f. Laundry and cleaning: $

g. Newspapers, periodicals, & books, including school books: $

h. Medical, dental, and drug expenses: $

i. Insurance (auto, life, medical, homeowners/renters): $

j. Transportation, including auto payments: $

k. Taxes not deducted from wages or included in mortgage: $

l. Alimony or support payments: $

m. Religious/charitable contributions: $

n. Other expenses (use reverse side if necessary):

$

$

$

$

LIST ALL REAL ESTATE OWNED BY YOU AND YOUR SPOUSE:

LIST THE ESTIMATED VALUE FOR ALL PERSONAL PROPERTY OWNED BY YOU OR YOUR SPOUSE:

a. Deposits in financial institutions and cash on hand: $

b. Household goods and supplies (use reverse side if necessary):

$

$

$

$ $

$ $

$ $

c. Household furniture and furnishings (use reverse side if necessary):

$

$

$

d. Jewelry (use reverse side if necessary):

$

$

$

$ $

$ $

$ $

$ $

$ $

$ $



e. Sports equipment and musical instruments (use reverse side if necessary):

$

$

$

$ $

$ $

$ $

f. Television, home theater, media, and stereo equipment (use reverse side if necessary):

$

$

$

g. Household appliances (use reverse side if necessary):

$

$

$

$ $

$ $

$ $

$ $

$ $

$ $

h. Automobiles, trucks, trailers, boats, and accessories (use reverse side if necessary):

$

$

$

$ $

$ $

$ $

i. Machinery and tools, lawn and garden equipment (use reverse side if necessary):

$

$

$

$ $

$ $

$ $

j. Office equipment, supplies, furniture, and inventory (use reverse side if necessary):

$

$

$

$ $

$ $

$ $

k. Farming equipment, supplies, livestock, and other animals (use reverse side if necessary):

$

$

$

$ $

$ $

$ $

l. Any other property not listed above (use reverse side if necessary):

$

$

$

$ $

$ $

$ $



LIST ALL OF YOUR CREDITORS (including credit cards) AND THE AMOUNT YOU OWE EACH

(Use reverse side if necessary):

$ $

$ $

$ $

$ $

$ $

$ $

YOUR INITIAL BY EACH OF THE FOLLOWING STATEMENTS INDICATES THAT YOU HAVE READ THE

STATEMENT, UNDERSTAND IT, AND AGREE TO IT.

I promise that I will notify this Court in person or by first-class mail of any changes of my address or telephone number at the

following address (court address) within five (5) days of the change.

I understand that I have a continuing obligation to notify the Court of any changes in my financial status that may

hinder my ability to satisfy the judgment or help me satisfy the judgment.

I understand that if I pay any part of the fine, costs, or restitution (if applicable) on or after the 31st day after judgment was

entered that I am responsible for paying a $25 time payment fee (Section 133.103, Local Government Code).

I understand that submitting false financial information to the Court constitutes the crime of tampering with a

governmental record, punishable by incarceration and/or the imposition of a fine (Section 37.10, Penal Code). I swear

that all the information in this application is true, correct, and complete to the best of my knowledge and belief.

Date: Defendant’s Signature:

Sworn and subscribed before me this day of , 20 .

(Judge) (Clerk) (Deputy Clerk)


INSTALLMENT AGREEMENT ORDER

CAUSE NUMBER:


VS. § CITY OF

§ COUNTY, TEXAS

ORDER

ON THIS THE day of , 20 , , the Defendant, having been found guilty by the

Court and assessed a fine of $ and court costs has agreed to pay the fine and costs at designated intervals. The total

amount owed at this time is $ . However, if any portion of the fine or costs is paid on or after the date of

, which is 31 days after the date of judgment, the Defendant shall pay an additional $25 as required by

Section 133.103 of the Local Government Code.

IT IS THEREFORE ORDERED that the Defendant make payments as scheduled by this Order. Each payment will be due and

payable as scheduled until the full amount is paid to the court. If the Defendant is unable to make a payment, the Defendant should

contact the Court immediately. The Defendant is ORDERED to notify the Court of any change of address.

Failure to comply with this order will result in a mandatory hearing and may cause the issuance of a capias pro fine. Article

102.010 of the Code of Criminal Procedure requires a defendant to pay a $50 warrant fee for the execution or processing of an issued

capias pro fine.

SCHEDULED PAYMENTS

IT IS HEREBY ORDERED that the Defendant, , pay the fine and court costs between the

hours of .m. and .m. on the following dates and in the following amounts until the total fine and costs are paid:

Due Dates of Payments Amounts Due

SIGNED AND RENDERED on this day of , 20 .

(municipal court seal) Judge, Municipal Court

City of

The Defendant acknowledges the receipt of a copy of this Order and that the Defendant understands the provisions of this Order

and has the ability to fully comply with this Order. Further, the Defendant understands his/her responsibility to inform the Court of

changes in his/her financial situation that may hinder his/her ability to satisfy either the judgment or any other order of the Court.

The Defendant understands that his/her responsibility terminates only upon satisfaction of the judgment. The Defendant

understands his/her responsibility to notify the Court of any change of address.

Date:

Defendant’s Signature


SCHEDULE OF PAYMENTS FOR INSTALLMENT AGREEMENT

CAUSE NUMBER:

STATE OF TEXAS

§

IN THE MUNICIPAL COURT

VS. §

§

CITY OF

COUNTY, TEXAS

Cause Number Date to be Paid Further Extensions Date Paid/Receipt Number

Date Defendant's Acknowledgement by Signature


COMMUNITY SERVICE ORDER (Art. 45.049, C.C.P.)

CAUSE NUMBER:

STATE OF TEXAS

§


VS. §

§

CITY OF

COUNTY, TEXAS

ORDER

ON THIS DATE appeared , Defendant in the above styled and numbered cause, who, having been

found guilty by the Court and assessed a fine and costs totaling $ in this cause on the day of ,

20 , (and the Court having determined that the Defendant has failed to pay such fine and costs) (and the Court having determined

that the Defendant has insufficient resources or income to pay such fine and costs), it is hereby

ORDERED, ADJUDGED, AND DECREED that the Defendant discharge (all of the fine and costs owed) (the remaining fine

and costs owed) by performing community service as follows:

1. The Defendant shall perform a total of hours;

2. The Defendant's community service shall be completed no later than , 20 ;

3. The Defendant shall perform the community service:

□ by attending a work and job skills training program;

□ by attending a preparatory class for the high school equivalency examination administered under Section 7.111, E.C.;

□ by attending an alcohol or drug abuse program;

□ by attending a rehabilitation program;

□ by attending a counseling program, including a self-improvement program, a mentoring program, or any similar activity;

□ for a governmental entity, non-profit organization, or another organization that provides services to the general public that

enhances the social welfare and general well-being of the community (other organization: );

□ for an educational institution;

4. The Defendant shall submit to the court documentation verifying the Defendant’s completion of the community service by

, 20 ;

and the Court having further found that performing more than 16 hours of community service per week (will)(will not) impose an

undue hardship on the Defendant, it is further

ORDERED, ADJUDGED, AND DECREED that the Defendant shall perform no more than hours per week in

discharging the above-ordered community service. A defendant is considered to have discharged $ of fines or costs for each

eight hours of community service. A defendant may discharge this obligation to perform community service by paying at any time the

fine and costs assessed.

Dated:

(municipal court seal)

Judge, Municipal Court

City of

County, Texas

Editor’s Note: The Court may require the Defendant to discharge a fine and costs at not less than a minimum of $100 for

every eight hours of community service performed. Art. 45.049(e), C.C.P.

For community service orders on children under Article 45.0492 of the Code of Criminal Procedure, see the Judgments &

Orders chapter.


COMMUNITY SERVICE TIME SHEET

Municipal Court

Address:

, Texas

Telephone:

Fax:

This documentation must be submitted to the court by , 20 .

Community Service Provider: Telephone: Date Assigned:

Name of Defendant Performing Community Service: DOB:

Total Hours Assigned: To be completed by:

Complete hours by ; and then hours by

Cause number(s):

Date Time In Time Out Total Hours Subtotal Hours Supervisor Initials Defendant’s Initials

Community Service Rules

While performing community service, I will:

▪ Contact the provider I choose to arrange community

service as soon as possible;

▪ Arrive on time;

▪ Obey the site supervisor;

▪ Not leave the site without permission;

▪ Not carry any sort of weapon;

▪ Not use abusive language;

▪ Not deliberately destroy or deface any tools or property;

▪ Never accept any tips or cash from anyone in association with

my community service;

▪ Wear appropriate clothing;

▪ Apply for authorization for extension of time if needed;

▪ Contact the Municipal Court with any questions.

I certify that the above record is a true representation of the number of hours performed for the above period by .

Approved by:

Community Service Provider Representative Signature of Defendant Performing

Community Service

WARNING: Filing false information with the Court is a Class A misdemeanor punishable by up to one year in jail and a

maximum fine up to $4,000.

COMMUNITY SERVICE TIME SHEET

INDIGENCE, COMMUNITY SERVICE, JAIL CREDIT, & PAYMENT PLANS 11/17 TMCEC 2017 FORMS BOOK 191

WAIVER OF PAYMENT OF FINES AND COSTS FOR CERTAIN DEFENDANTS AND FOR CHILDREN (Art. 45.0491, C.C.P.)

CAUSE NUMBER:

STATE OF TEXAS

§


VS. §

§

CITY OF

COUNTY, TEXAS

ORDER

On the day of , 20 , came to be heard Cause Number wherein

, hereinafter called Defendant, was convicted of a misdemeanor offense to

wit: on the day of , 20 and ordered to pay the

fine and costs in the amount of $ (, of which $ has not been satisfied).

After due inquiry and consideration of the facts and circumstances regarding the Defendant’s ability to satisfy the aforementioned

judgment, the Court determines as follows:

1. The Defendant:

□ is indigent or does not have sufficient resources or income to pay all or part of the fine or costs; or

□ was, at the time the offense was committed, a child as defined by Article 45.058, Code of Criminal Procedure; and

2. Discharging the fine or costs under Article 45.049 of the Code of Criminal Procedure or as otherwise authorized by

Chapter 45, would impose an undue hardship on the Defendant.

Accordingly, pursuant to Article 45.0491, Code of Criminal Procedure, the Court waives the (stated) (remaining) fine and costs for

Defendant.

ORDERED, ADJUDGED, AND DECREED.

Entered this day of , 20 .

(municipal court seal) Judge, Municipal Court

City of

County, Texas

Editor’s Note: The 85th Legislature amended Art. 45.0491, C.C.P., providing more leeway to judges concerning fines and costs

imposed on indigent defendants. (H.B. 351/S.B. 1913, 85th Legislature (2017)). If the facts and circumstances warrant it, judges

now have the discretion to waive all or part of the fines and/or court costs imposed on defendants who (1) are indigent or do not

have sufficient resources or income to pay all or part of the fine or (2) were children at the time the offense was committed, if

discharging the judgment through alternative means would be an undue hardship, regardless whether the defendant has defaulted in

discharging the judgment. A defendant is presumed to be indigent or to not have sufficient resources or income to pay all or part of

the fine or costs if the defendant is in the conservatorship of the Department of Family and Protective Services (or was at the time

of the offense) or is designated as a homeless child or youth or an unaccompanied youth, as those terms are defined by 42 U.S.C.

Section 11434a (or was at the time of the offense). (S.B. 1913, 85th Legislature (2017)).


ORDER WAIVING SURCHARGES FOR INDIGENT DEFENDANT (SEC. 708.158, T.C.)

CAUSE NUMBER:


VS. § CITY OF

§ COUNTY, TEXAS

(Texas Driver’s License # )

(DOB: )

ORDER WAIVING SURCHARGES FOR INDIGENT DEFENDANT

On the of , 20 , Defendant was convicted by this Court of an offense for which surcharges

are assessed under Texas Transportation Code, Chapter 708, to wit: ,

which offense occurred on .

The Court, having heard the evidence presented by the Defendant, and having reviewed all documentation provided,

makes the following findings:

□ The Defendant’s income or the Defendant’s household income does not exceed 125% of the applicable income

level established by the federal poverty guidelines; or

□ The Defendant, or the taxpayer claiming the Defendant as a dependent, receives assistance from one of the

programs outlined in Section 708.158(b)(3) of the Transportation Code.

THE COURT FINDS THE DEFENDANT IS INDIGENT.

This is the Court in which the Defendant was convicted of the offense that is the basis for the surcharge.

It is therefore ORDERED that the Texas Department of Public Safety shall WAIVE all surcharges assessed under

Texas Transportation Code, Chapter 708, for the Defendant as a result of the conviction in the above entitled and numbered

cause.

Judge, Municipal Court Date

(municipal court seal) City of

County, Texas

Editor’s Note: Fax this form to the Department of

Public Safety: 512.424.2740.


FINDING OF INDIGENCE FOR PURPOSES OF SEC. 706.006, T.C. (OMNIBASE ADMINISTRATIVE FEE)

CAUSE NUMBER:


VS. § CITY OF

§ COUNTY, TEXAS

FINDING

On the day of , 20 , came to be heard Cause Number wherein

, hereinafter called Defendant, was convicted of a misdemeanor offense to

wit: on the day of , 20 and ordered to pay the

fine and costs in the amount of $ , of which $ has not been satisfied.

The Court, having heard the evidence presented by the Defendant, and having reviewed all documentation provided, FINDS the

defendant indigent. Pursuant to Section 706.006(d) of the Transportation Code, the Defendant may not be required to pay an

administrative fee under Section 706.006.

Judge, Municipal Court Date


County, Texas

Editor’s Note: For purposes of Section 706.006(d) of the Transportation Code, a person is presumed to be indigent if the

person: (1) is required to attend school full time under Section 25.085 of the Education Code; (2) is a member of a household

with a total annual income that is below 125 percent of the applicable income level established by the federal poverty

guidelines; or (3) receives assistance from: (A) the financial assistance program established under Chapter 31 of the Human

Resources Code; (B) the medical assistance program under Chapter 32 of the Human Resources Code; (C) the supplemental

nutrition assistance program established under Chapter 33 of the Human Resources Code; (D) the federal special supplemental

nutrition program for women, infants, and children authorized by 42 U.S.C. Section 1786; or (E) the child health plan program

under Chapter 62 of the Health and Safety Code. (H.B. 351/S.B. 1913, 85th Legislature (2017)).


INCARCERATED JAIL CREDIT RESPONSE LETTER

Name

Address

City and State

Date

Dear Sir or Madam:

The Court has received your letter requesting jail credit.

According to the Court’s records, your request for jail credit is for the following cause number(s):

.

To consider your request, the Court requires the following:

1. A plea of either guilty or nolo contendere (no contest) in the cause(s) for which you are seeking jail credit.

2. OFFICIAL DOCUMENTATION stating:

The offense for which you are incarcerated;

The specific name of the facility and location where you are incarcerated;

When you began your incarceration; and

The date your incarceration is scheduled to end.

In response to your request:

□ AT THIS TIME, YOUR REQUEST CANNOT BE CONSIDERED, for the following reason:

□ The Court has not received a plea of guilty or nolo contendere (no contest) in the cause(s) for which you are seeking

jail credit. Please submit the enclosed form entitled Plea Form: By Mail or Delivery to the Court. Upon receipt of

the form, your request shall be considered.

□ The Court has not received OFFICAL DOCUMENTATION (described above).

□ Because you were not incarcerated at the time the Court ordered you to be arrested and/or committed to jail in the above

referenced matter(s), your request for concurrent jail credit is DENIED.

□ Though incarcerated at the time the Court ordered you to be arrested and/or committed to jail in the above referenced

matter(s), the incarceration is unrelated to the matter(s) before this Court, therefore your request for concurrent jail credit

is DENIED. You must complete your current term of incarceration before beginning to earn any jail credit in the above

referenced matters.

□ Because of your incarceration at the time the Court ordered you to be arrested and/or committed to jail in the above

referenced matter(s), the Court GRANTS your request for concurrent jail credit. The Court’s records shall reflect that the

judgment(s) in the above referenced matter(s) are satisfied in full.

Sincerely,

Municipal Judge

City of


DEFENDANT'S MOTION TO LAY OUT FINE IN JAIL

CAUSE NUMBER:


VS. § CITY OF

§ COUNTY, TEXAS

DEFENDANT'S MOTION TO LAY OUT FINE IN JAIL

On the day of , 20 , I was found guilty of the offense of and was assessed a

fine and court costs totaling $ dollars, of which $ is unpaid.

I understand that I may ask the Court to grant me an extension of time to pay, a payment plan, or community service to discharge the fine and costs for

all or part of the fine and costs. I DO NOT WANT an extension to pay, I DO NOT WANT a payment plan, and I DO NOT WANT to perform

community service to discharge the fine and costs. I REFUSE TO PAY THE FINE AND COSTS ORDERED BY THE COURT.

I understand that I may ask the Court to consider my financial situation to decide if I am indigent. If the Court finds me indigent, I cannot be jailed to

pay the fine and costs. I DO NOT claim that I am indigent. I DO NOT WANT a hearing on whether I am indigent.

I was 17 years old or older when I committed the offense. I am of sound mind. I request the Court to order me to jail immediately. If my request is

granted, I will be given jail credit at not less than 8 hours or more than 24 hours as the period I must remain in jail to satisfy not less than a minimum of

$100 of the fines and costs. I understand that the Judge will determine the rate at which I earn jail credit.

The Court has not encouraged me to make this motion. I understand that I have been convicted of an offense punishable by the imposition

of a monetary fine, not by a term of incarceration. My request to discharge the fine and costs through commitment to jail has not been influenced by

the Court or any individual, other than myself. This motion is made freely and voluntarily.

I have read this entire motion, I understand it, and I agree to sign it and present it to the Judge. I want the Judge to grant this motion and

order me to jail.

Date Defendant's Signature

Printed name and address:

Telephone number(s):

□ Motion granted Motion denied

Date Judge, Municipal Court


. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

COMMITMENT

On this the day of , 20 , the Court considered the foregoing Defendant’s Motion to Lay Out Fine in Jail. THE COURT

FINDS that the motion was made freely and knowingly and the Court determines that the request should be granted.

It is therefore ORDERED that the Defendant, , is committed to the custody of the [(Chief of Police)(City

Marshal) of the City of ] (Sheriff of County), Texas until such time as Defendant’s fine and costs have

been discharged as provided by law and that this Motion and Commitment be kept with the papers of this cause.

Unless otherwise specified in the judgment or sentence in said cause, pursuant to Article 45.048(b), Code of Criminal Procedure, the Court specifies

that the Defendant remain in jail a sufficient length of time to satisfy the fine and costs at the following rate:

hours (not less than 8 or more than 24) to earn

(minimum dollar amount $100) until such time as Defendant’s fine and costs have been discharged.

It is ORDERED that this Motion and Commitment be kept with the papers of this cause.

ENTERED this day of , 20 .



City of

County, Texas

Editor’s Note: Courts are strongly urged to be aware that

there are inherent dangers to letting defendants lay out

their fine in jail and should be mindful of possible legal

consequences as well as better alternatives to this practice.


DEFENDANT’S REFUSAL TO DISCHARGE FINE OR COSTS BY PERFORMING COMMUNITY SERVICE (Art. 45.049, C.C.P.)

CAUSE NUMBER:


VS. § CITY OF

§ COUNTY, TEXAS

DEFENDANT'S REFUSAL TO DISCHARGE FINE OR COSTS BY PERFORMING COMMUNITY SERVICE

On the day of , 20 , I was found guilty of the offense of and

was assessed a fine and court costs totaling $ dollars, of which $ is unpaid.

(check one):

□ I failed to pay the fine and/or costs stated above.

□ I have been determined by the court to have insufficient resources or income to pay the fine and/or costs stated above.

I understand that the judge is permitted to require me to discharge all or part of the fine or costs by performing community service.

I CAN discharge the fine or costs without experiencing any undue hardship.

AND

I DO NOT WANT to discharge any or all of said fine and/or costs by performing community service.

I was 17 years old or older when I committed the offense. I am of sound mind. The court has not encouraged me to refuse to discharge

all or part of said fine and/or costs by performing community service.

I WANT to discharge the fine and costs by:

I have read this entire refusal, I understand it, and I agree to sign it and present it to the Judge. I want the Judge to

acknowledge my refusal and grant my request to discharge the fine and costs as I stated above.

Date Defendant's Signature

Printed name and address:

Telephone number(s):

□ Refusal Acknowledged

Date Judge, Municipal Court


ENFORCEMENT 11/17 TMCEC 2017 FORMS BOOK 198

SHOW CAUSE NOTICE PRIOR TO ISSUANCE OF CAPIAS PRO FINE (Art. 45.045, C.C.P.)

CAUSE NUMBER:

STATE OF TEXAS

§


vS. §

§

CITY OF

COUNTY, TEXAS

SHOW CAUSE NOTICE

The official Court record shows that you have failed to satisfy the judgment rendered against you on ,

20 according to its terms. The court will hold a hearing on your ability to satisfy the terms of the judgment on the day of

, 20 at o'clock .m. at the Municipal Court, located at

.

The hearing scheduled on the date and time above is your opportunity to explain why all the terms of the judgment have not been

completed on time.

If the reason for failure to satisfy the judgment is because you cannot pay, bring any documents with you to the hearing that you

believe will help the judge determine your ability to pay, including pay stubs, bills, letters regarding government assistance, and similar

documents. It is your obligation to provide enough information for the Judge to be able to fully understand your financial situation.

If the judge determines that you are unable to pay the fine and costs, alternatives to full payment of the fine and costs are available,

such as installment payments and community service.

Failure to appear on this date and time may result in the issuance of a capias pro fine and commitment to jail to discharge

the judgment under Article 45.046 of the Code of Criminal Procedure. Additional fees by law may result.

If you are unable to appear at the hearing, contact the court immediately. You can reach the court by calling .

Signed on this day of , 20 .



City of

County, Texas

Editor's Note: Effective September 1, 2017, before a court may issue a capias pro fine for the defendant's failure to satisfy

the judgment according to its terms: (1) the court must provide notice that includes a statement that the defendant has failed

to satisfy the judgment according to its terms; and a date and time when the court will hold a hearing on the defendant's

ability to satisfy the judgment according to its terms; and (2) either the defendant fails to appear at the hearing; or based on

evidence presented at the hearing, the court determines that the capias pro fine should be issued. (H.B. 351/S.B. 1913, 85th

Legislature (2017)).


CAPIAS PRO FINE (Art. 45.045, C.C.P.)

CAUSE NUMBER:

STATE OF TEXAS

§


vS. §

§

CITY OF

COUNTY, TEXAS

TO THE CHIEF OF POLICE OF THE CITY OF OR ANY PEACE OFFICER OF THE STATE OF

TEXAS - GREETINGS:

Whereas on the day of , 20 , before Judge of the Municipal Court of the

City of , Texas, , the Defendant, date of birth ,

was convicted of the offense of: and a judgment was rendered by said Court in favor of the State,

against said Defendant for the sum of $ and all costs of court; and there is due and unpaid the amount of $

Pursuant to Article 45 045 of the Code of Criminal Procedure, the Court sent notice to the Defendant on the day of

, 20 and held a hearing at o'clock m , on the day of , 20

□The Defendant failed to appear at the hearing OR

□Based on evidence presented at the hearing, the court determined that a capias pro fine should be issued

Therefore, the Court hereby finds that said Defendant has defaulted and failed to wholly satisfy the judgment in the above styled case

You are therefore COMMANDED to bring said Defendant before the Municipal Court of the City of ,

Texas immediately [or before a municipal court located in the same municipality if this Court is unavailable] or place him or her in jail

until (he)(she) can be brought before the Court without delay until the next business day following the date of the Defendant's arrest if

the Defendant cannot be brought before the Court immediately

The arresting officer is ORDERED to notify the Court IMMEDIATELY upon arrest of the Defendant If the Defendant is

placed in jail, jail personnel are ORDERED to notify the Court IMMEDIATELY upon placement of the Defendant in jail

In witness whereof, I have hereunto set my hand at my office in the Municipal Court of the City of ,

Texas this day of , 20



OFFICER'S RETURN

Came to hand the day of , 20 , at o'clock m and executed on the day of

, 20 , at o'clock m the same by arresting , the named

Defendant

Notice was provided to the Court on the day of , 20 ,

at o'clock m

Arresting Officer

Editor's Note: The importance of the communication by the arresting officer and/or the jail to the court that issued the capias

pro fine cannot be overstated A capias pro fine is not commitment, which requires specific procedural safeguards under the

U S Constitution and Art 45 046, C C P Effective September 1, 2017, before a court may issue a capias pro fine, the court

must provide notice and a hearing and either the defendant fails to appear at the hearing or the court determines the capias pro

fine should issue based on evidence presented at the hearing A capias pro fine shall be recalled if before the capias pro fine is

executed, the defendant voluntarily appears to resolve the amount owed and the amount owed is resolved in any manner

authorized by Chapter 45 Art 45 045, C C P (H B 351/S B 1913, 85th Legislature (2017))


ORDER OF COMMITMENT (Art. 45.046, C.C.P.)

CAUSE NUMBER:


vS. § CITY OF

§ COUNTY, TEXAS

TO ANY PEACE OFFICER OF THE STATE OF TEXAS - GREETINGS:

You are commanded to take into custody and commit to the jail of your County(Municipality) the above-named Defendant,

who was, on the , day of , 20 , convicted before the Municipal Court in the City of

, County, Texas of the offense of and was assessed a

fine and court costs totaling $ , of which $ is unpaid.

The undersigned finds that EITHER (check the applicable one):

□ (1) the arrestee is the same person as the Defendant in the cause described above;

(2) the Defendant has intentionally failed to make a good faith effort to pay said fine and costs; and

(3) the Defendant is not indigent and has failed to make a good faith effort to discharge said fine and costs; OR

□ (1) the arrestee is the same person as the Defendant in the cause described above;

(2) the Defendant has intentionally failed to make a good faith effort to pay said fine and costs; and

(3) the Defendant is indigent and:

(a) has failed to make a good faith effort to discharge the fine and costs under Article 45.049, Code of Criminal Procedure,

(community service);

(b) could have discharged the fine under Article 45.049, Code of Criminal Procedure, (community service) without

experiencing any undue hardship.

Therefore, you are commanded to keep the Defendant in custody until the sum of $ is fully paid or the Defendant is

otherwise discharged by law. Unless otherwise specified in the judgment or sentence in said cause, pursuant to Article 45.048(b),

Code of Criminal Procedure, the Court specifies that the Defendant remain in jail a sufficient length of time to satisfy the

remaining fine and costs at the following rate:

hours (not less than 8 or more than 24) to earn

(minimum dollar amount $100) to satisfy the fine and costs.

In the event the Defendant is committed for defaulting in more than one judgment, jail credit is to be assessed:

□ Concurrently (at the same time, per judgment until jail credit exceeds or equals the sum total of fine and costs); or

□ Consecutively ("stacked," one sentence of confinement is to follow another until jail credit exceeds or equals the sum total of

fine and costs) with following cause(s): List cause number(s), Court(s), date of judgment(s), offense(s), and fine and costs

total(s)

Ordered on this day of , 20 .



City of

County, Texas

NOTICE – INITIAL COURT SETTING (Art. 45.014, C.C.P.)

CAUSE NUMBER:


VS. § CITY OF

§ COUNTY, TEXAS

NOTICE

You received a citation on , 20 for the offense of ,

requiring you to appear in court. (If other charges have been filed, such as failure to appear, include that information here.)

Prior to that date, you may enter a plea by mail or in person during business hours: .

More information is available on the court’s website: .

To avoid arrest and further fees, it is important that you communicate with the court. If you are unable to appear in

court on the date and time listed above, contact the court immediately. You can reach the court by calling .

If you are convicted and the court determines that you are unable to pay the fine and costs, there are alternatives to the full

payment of any fine or costs owed, which may include community service and installment payments.

If you come to the court to resolve your case, you will not be arrested at the court for any charges filed in this

court.

Signed this day of , 20 .

This notice mailed on , 20 .

Judge, Municipal Court (municipal court seal) City of

County, Texas

WARRANTS & CAPIASES 11/17 TMCEC 2017 FORMS BOOK 25

You are hereby ORDERED to appear at the Municipal Court, located at

to enter a plea on the charge on , 20 at

(a.m.)(p.m.) (date must be within 30-day period following the date of the notice). Failure to enter a plea may result in a

warrant for your arrest.

Editor’s Note: Effective September 1, 2017, a judge may not issue an arrest warrant for a defendant’s failure to appear at

the initial court setting, including failure to appear as required by a citation issued under Article 14.06(b), unless: (1) the

judge provides by telephone or regular mail to the defendant notice that includes: (a) a date and time, occurring within the

30-day period following the date that notice is provided, when the defendant must appear before the justice or judge; (b) the

name and address of the court with jurisdiction in the case; (c) information regarding alternatives to the full payment of any

fine or costs owed by the defendant, if the defendant is unable to pay that amount; and (d) an explanation of the

consequences if the defendant fails to appear before the justice or judge as required by this article; and (2) the defendant fails

to appear before the judge as required by Article 45.014. (H.B. 351/S.B. 1913, 85th Legislature, 2017)).

See also, Section 80.002 of the Government Code, authorizing a court, justice, judge, magistrate, or clerk to send any

required notice using mail or electronic mail.

If the court sends this notice after the defendant misses the initial court setting, and if a charge of failure to appear or

violation of a promise to appear (or another non-appearance crime) is filed, include that charge in this notice.

NOTICE TO DEFENDANT FOLLOWING PLEA BY MAIL (Art. 27.14(b), C.C.P.)

CAUSE NUMBER:


vS. § CITY OF

§ COUNTY, TEXAS

Pursuant to Article 27.14(b), Code of Criminal Procedure, the Court hereby on , 20 notifies

, Defendant in Cause Number , that the amount of fine assessed in this cause is

$ , the amount of costs assessed in this cause is $ , and the

amount of the appeal bond is $ . You have until , which is 31 days from

the date of this notice to either pay the fine and costs or present the Court with a proper appeal bond. You are further notified that if you

are unable to pay the fine and costs or present an appeal bond to the Court before the 31st day, you must contact the Court to schedule a

hearing on your ability to pay. Alternatives to the full payment of the fine or costs may be available to you, such as community service

or installment payments. Payment of the fine and costs constitutes satisfaction of the judgment and waiver of the right to appeal.

Failure to pay the fine and costs, post an appeal bond, or schedule a hearing may result in your arrest. However, if you

come to the court to resolve your case, you will not be arrested at the court for any charges filed in this court.



City of

PLEAS 11/17 TMCEC 2017 FORMS BOOK 101

Editor's Note: Effective September 1, 2017, if the court receives a plea of guilty or no contest by mail, the court shall

notify the defendant either in person or by regular mail of the amount of any fine or costs assessed in the case, information

regarding the alternatives to the full payment of any fine or costs assessed against the defendant, if the defendant is unable

to pay that amount, and, if requested by the defendant, the amount of an appeal bond that the court will approve. Article

27.14, C.C.P. (H.B. 351/S.B. 1913, 85th Legislature, 2017)).

Documents

Fines, Fees, Costs, and Indigence Revisited