Volume 11 JULY 2002 No. 5 - TMCEC :: Home Recorder/2002/Jul02Recorder.pdfPage 2 Municipal Court Recorder July 2002 Texas Municipal Courts Education Center 1609 Shoal Creek Boulevard,

©2002 Texas Municipal Courts Education Center, Austin. Funded by a grant from the Court of Criminal Appeals.

VVVVVolume 11olume 11olume 11olume 11olume 11 JUL JUL JUL JUL JULY 2002Y 2002Y 2002Y 2002Y 2002 No. 5 No. 5 No. 5 No. 5 No. 5

Deferred Disposition: “Thinking Outside ofthe Box” versus “Abuse of Discretion”

by Ryan Kellus TurnerProgram Attorney & Deputy Counsel, TMCEC

Mayors continued on page 12

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

Articles:Deferred Disposition: “Thinking Outsideof the Box” versus “Abuse of Discretion”by Ryan K. Turner ........................... 1Mayor, Magistrates, and Judges byMargaret Robbins .............................. 1Vehicle Modifications ......................... 5What Is a Psychosocial Assessment?by Stephanie B. Turner .................. 11

Columns:

Around the State ................................ 2From the General Counsel .............. 4Resources for Your Court ............. 17From the Center .............................. 19Registration Form ........................... 21Tech Corner ...................................... 22

Deferred continued on page 9

Mayors, Magistrates,and Judges

by Margaret RobbinsProgram Director, TMCEC

The Texas Municipal Courts EducationCenter fields many calls regarding therole of mayors, magistrates, and judges.Unfortunately, statutes do not have nice,neat lists that establish the roles andduties of each. Since a study of Texaslegislative history shows that the role ofmayor and magistrate were intertwined,to help present a clearer picture of theroles of each, some backgroundinformation is presented here.

Mayors are the principal administrativeofficers of cities. The position of mayorvaries from city to city with somemayors being the executive official ofthe city and in other cities, the mayor isjust a ceremonial figure.

The first general law providing rulesfor the incorporation of Texas townsand cities was enacted in 1858. Thislaw granted the mayor jurisdiction

During this year’s “traditional” 12-hour seminar, municipal judgesthroughout the state have beenchallenged to consider how and whenthey utilize their discretionaryauthority under Article 45.051, Codeof Criminal Procedure.1 Of all thefigurative tools in a municipal judge’stoolbox, no other statute compares todeferred disposition in terms of itspotential to assist the court in correct-ing the conduct of the defendant.Like any other tool, however, itsutility is ultimately only restricted by

the scope of vision of those whoemploy it.

The purpose of this article is toincrease judicial awareness of thepotential use of deferred disposition.

Brief History

Prior to 1982, municipal and justicecourts were without statutory author-ity to impose any form of probation.In fact, in 1979 the Adult Misde-meanor and Probation Law expresslylimited probation authority to courtsof record. Thus, in effect, denying

probation authority to all justice ofthe peace courts and the vast majorityof municipal courts.2 Acknowledgingthe evolving role of municipal andjustice courts in preserving publicsafety, protecting the quality of life inTexas communities, and deterringfuture criminal behavior, the Legisla-ture in 1982 created a specific proba-tion statute for all local trial courts oflimited jurisdiction.3 Implicit in thedeferred disposition statute is thenotion of rehabilitation. While the

Page 2 Municipal Court Recorder July 2002

Texas Municipal CourtsEducation Center

1609 Shoal Creek Boulevard, Suite 302Austin, Texas 78701

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

Web page: www.tmcec.com

TMCA OfficersPresident: Robert Kubena, HallettsvillePresident-Elect: Joe Pirtle, Seabrook1st V.P.: Sharon Hatten, Midland2nd V.P.: Edwin L. Presley, BenbrookSecretary: Vicki Gerhardt, New LondonTreasurer: Robert C. Richter, MissouriCityPast President: Glenn Phillips, Kilgore

DirectorsRobert Doty, Lubbock . Ninfa Mares, FortWorth . Patsy Haynes, Kilgore . RobinSmith, Midland . Dan Francis, Robinson .David Perkins, New Braunfels . TimothyFox, Brazoria . George Bill Robinson,Yorktown . Robin Ramsay, Denton .Robert Barfield, Pasadena

Staff. Hope Lochridge, Executive Director. W. Clay Abbott, General Counsel. Ryan Kellus Turner, Program Attorney & Deputy Counsel. Margaret Robbins, Program Director. Jo Dale Bearden, Program Coordinator. Margaret Danforth, Admin. Director. Patricia Russo, Program Assistant II. Rey Guzman, Multimedia Specialist. Beatrice Flores, Registration Coordinator. Julie Sebeck, Publications Coordinator. Roxi Salinas, Communications Assistant

Published by the Texas Municipal CourtsEducation Center through a grant from theTexas Court of Criminal Appeals. Subscrip-tions are free to all municipal court judges,clerks, prosecutors, and office personnelemployed by the municipal court.

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

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

AROUND THE STATE

Join the Crowd!According to Mike Griffith (Director, Judicial Committee on InformationTechnology), municipal courts have been the quickest to take advantage of theopportunity to file electronic monthly reports with the Texas Judicial Coun-cil/Office of Court Administration (OCA). According to OCA records, thefollowing cities have requested user names so that they may begin filingelectronically via the OCA web site:

Participating courts can use the Internet to submit caseload and revenueinformation each month. Once entered by the court, the information isimmediately accessible in single month or summary form. This new reportingcapability is part of the Trial Court Data Management project and a first stepin automating caseload reporting.

If you are authorized to report your court’s information and wish to report toOCA online but do not have a User Name and Password, contact the HelpDesk at 512/463-1642 or visit the web site: www.info.courts.state.tx.us/mn/mn.exe/home. You will then be ready to send reports directly through theInternet each month, with no mailing or faxing of paper reports. While youare logged on to your account, you can also instantly review your submittedreports, print current and previous reports, sum caseload statistics for selectedtime periods, and add or update reports from the previous quarter.

AbileneAlpineAndrewsBalcones HeightsBanderaBastropBaytownBellaireBrownwoodCarrolltonCiboloCiscoClear Lake ShoresCliftonClintColemanCorpus ChristiCrystal CityDalhart

Deer ParkDentonDeSotoDuncanvilleEl PasoFairfieldFarmers BranchFort WorthGarlandGeorge WestGrapevineHamiltonHaskellHickory CreekHillsboroHuntsvilleIdalouKarnes CityKerrville

La JoyaLakesideLavonLeague CityLewisvilleMarble FallsMesquiteMidlandMidlothianMineolaMissouri CityMoodyNacogdochesNewarkPanorama VillageParisPearlandPlanoPort Arthur

ProgresoRhomeRichardsonRobinsonRoman ForestSan AngeloSomervilleSouthside PlaceSugarlandSundownSunrayTrophy CityTyeWebsterW. UniversityPlaceWhitneyWhite Oak

July 2002 Municipal Court Recorder Page 3

PURPOSETo recognize each year a municipal court judge and a court support staff member who have made anoutstanding contribution to the fair and impartial administration of justice by meeting any one ormore of the following standards: (1) setting up an exemplary court where procedures and staff aremodels for all municipal courts in Texas; (2) providing inspiring leadership among municipal judgesand court support personnel such that networking and professionalism is encouraged and established; (3) providingcommunity leadership to ensure the protection of the public’s interest; (4) increasing communication and understand-ing between the public, the municipal courts, and other levels of the judiciary; (5) serving as an outstanding facultymember in judicial education programs, which strengthens the competence of the municipal judges and court supportpersonnel.

ELIGIBILITYAny individual presently serving or having served in the 2002 calendar year as a municipal judge or as a member of acourt’s support staff (including but not limited to clerks, court administrators, bailiffs, and prosecutors) in the State ofTexas may apply for one of these two awards. Members or materials prepared by members of the TMCA JudicialRecognition Committee are ineligible.

JUDGING COMMITTEEThe judging committee will consist of members of the TMCA Judicial Recognition Committee, which is made up ofboard members and members of TMCA.

Among factors, applicants applying for the awards will be judged on the basis of one or more of the following criteria:

• Excellence in the administration of municipal court procedures• Record of outstanding leadership in the community or profession• Effective use of community resource persons in support of the work of the municipal courts• Initiative in innovative and cost effective problem solving of issues facing the municipal courts

ENTRY RULES1. Nominations must be submitted in triplicate and presented in a plain manila folder or envelope2. Cover letter should indicate nominee for “Judge” or “Court Support Personnel”3. Nomination application should also include the following:

• Résumé of the nominee (max. 2 pages)• Summary of contributions worthy of recognition in improving municipal courts (max. 2 pages)• Letters of recommendations or support (max. 5 pages)• Relative evidences like newspaper articles, resolutions, and publications

DEADLINEEntries must be received no later than July 15, 2002. Send applications to:

The Honorable Sharon Hatten406 E. IllinoisMidland, TX 79701915/685-7300 or [email protected] for inquiries only

PRESENTATIONThe two award winners will be notified by August 1, 2002 and invited to attend the Awards Dinner tentatively scheduledto be held aboard the USS Lexington Friday, October 25th during the TMCA Annual Meeting in Corpus Christi.

TMCA Annual Meeting

The Texas Municipal CourtsAssociation will hold itsAnnual Meeting October 24-26, 2002 in Corpus Christi atthe Omni Marina (Reserva-tions: 800/843-6664).

Texas Municipal Courts Association2002 Judicial Awards for Excellence

in the Administration of Justice


FROM THE GENERAL COUNSELW. Clay Abbott

There were three recent actions bythe Commission on Judicial Conductthat all had to do with a lack ofdecorum or improper conduct beforethe public by judges. The cases showthat courts may need to review theiretiquette and brush up their publicimage.

Are Lady Justice’seyes closed behind

the blindfold?Every Sunday sometime during thesermon, I know that as I am rever-ently and sleepily bowing my head, Iwill catch the spouse’s elbow in theribs. I admit to occasionally catchingup on my sleep in semi-quiet, warmplaces when I am not up and moving.We now know that the bench is notone of the places a judge may ethi-cally doze off. On March 1, 2002, theCommission on Judicial Conductgave a Public Admonition to Justiceof the Peace John Robert Kleimannfor sleeping during official courtproceedings on numerous occasions.They found that the justice failed tomaintain order and decorum in thecourtroom and that judges beingasleep on the bench eroded publicconfidence in the judiciary.

It is important to note that theCommission admonished the justicefor sending the message that he didnot care about the proceedings, notfor actually failing to care. I havenoticed a few nodding heads in theseminars I have taught in the lastcouple of years, and I take no offense.I have already confessed to the samegap in manners. What is most impor-tant to remember is that the conductexpected of a judge is higher than

normal. The diligence expected of thejudge in court should also be higherthan the judge requires of other courtparticipants.

Perhaps we older gentlemen shouldtake more breaks. Perhaps we shouldgive the clerk rubberbands andpaperclips and instruct them in howto use them as sleep deterrents.Perhaps we need only remind our-selves that just another boring casefor us is an extremely importantevent for the folks who enter ourcourts.

“That’s a sword inLady Justice’s hand,

not a paddle”I have no wish to pick on JudgeKleimann but, on March 1, 2002, healso received a Public Reprimand forordering a foster parent to spank achild in his court. Any judge, orparent for that matter, knows thefrustration of dealing with childrenand juveniles. It often seems hard toget their attention, and sometimescriminal procedures seem to be veryrestrictive.

In a court hearing concerning ajuvenile charged with disorderlyconduct, a foster parent told thecourt he had problems controllingthe child’s behavior. The courtremarked, “What he needs is a goodbutt-dusting.” The foster parent thenexplained he was prohibited fromspanking his 11-year-old foster son.The judge then declared that hegranted permission for the spankingand ordered the constable to producea two-foot paddle with air holes anda special grip. Having previously

been warned of contempt if he failedto spank his foster children, the fosterparent gave the child three blows withthe paddle in the courtroom. This wasnot the only spanking incident, andthe judge defended the public spank-ing in the Houston paper.

The Commission found the judge hadno legal authority to order the spank-ing. They also found violations of theCode of Judicial Conduct for failing tomaintain decorum in the court andcasting public discredit on the judiciary.

This is clearly an area that inspiresstrong opinions on both sides. Theissue remains that our courts must beclothed in proper decorum andtemperance. Public beatings in courtsare best left in the past.

What does thatbutton on Lady

Justice’s toga say?Finally, we have the answer to everyethics speaker’s hypothetical: Can ajudge have a political bumper stickeron his or her car?

The answer is no. A political bumpersticker affixed to a vehicle also bearingstate judge’s license plates given to ajudge violates Canon 2B of the Codeof Judicial Conduct. On February 15,2002, the Commission issued a PublicAdmonition to Appellate JusticeNelda Rodriquez for allowing a TonySanchez bumper sticker to be affixedto the car bearing her specializedplates for an indefinite period of time.

Lending the prestige of judicial officemust be carefully guarded against, inno small part, because it is so stronglysought.B


Vehicle modifications have been onthe rise in recent years. With all thepossibilities of new and improvedproducts, it can be hard to know ifthey are actually “road legal.” Thereis a distinction from “legal to pur-chase” and “street legal” and evenwhat is legal from the inspectionperspective.

Clear Taillight LensesFor clear taillight lenses to be legal,they must consist of the followingcomponents.

Stop Lamp

• All motor vehicles are required tohave at least two stop lamps, unlessthe vehicle was manufactured prior to1960, in which case it is required tobe equipped with one.

• A stop lamp must emit a red oramber light, or any shade of colorbetween red and amber.

• A stop lamp must be visible from adistance of not less than 300 feet tothe rear in normal sunlight.

• The stop lamp shall be actuatedupon application of the service (foot)brake and may be incorporated withone or more other rear lamps.

• Stop lamp lenses must be of a typemeeting Department of Public Safetystandards.

Tail Lamp

Every motor vehicle shall beequipped with at least two tail lamps,unless the vehicle was manufacturedprior to 1960, in which case yourvehicle is required to be equippedwith one.

Vehicle ModificationsTail lamps mounted on the rear shallemit a red light plainly visible from adistance of 1,000 feet to the rear whenilluminated.

Rear Reflector

Every motor vehicle shall carry onthe rear, either as part of the taillamps or separately, two or more redreflectors.

Rear reflectors on a vehicle shallreflect a red color.

Red reflectors required on the rear ofa vehicle may be incorporated withthe tail lamp assembly.

Every reflector upon any vehicle shallbe of such size and characteristics andso mounted as to be visible at nightfrom all distances within 600 feet to100 feet from such vehicle whendirectly in front of the lawful lowerbeams of head lamps.

Turn Signal

Signal shall show white or amber tothe front or show red or amber to therear.

Lens Covers (Blackouts)

State law Section 547.3215 incorpo-rates Federal Motor Vehicle SafetyStandards, Subpart B, Federal MotorVehicle Safety Standards, Section571.108, Standard No. 108; Lamps,Reflective Devices, and AssociatedEquipment. This standard containsthe following:

Section 5.1.3 No additional lamp,reflective device or other motor vehicleequipment shall be installed thatimpairs the effectiveness of lightingequipment required by this standard.

As a general comment, any devicethat impairs the required effective-ness of headlamps, tail lamps, orreflectors is prohibited. The lights,both front and rear, are made by themanufacturer to meet this safetystandard. Putting something, par-ticularly something dark, wouldimpair its effectiveness.

In the inspection manual used bystate certified inspection stations,the following is the inspectioncriteria:

Tail lamp. Inspect and reject if lamp isobstructed by any part of the body.

References:Texas Transportation Code sections:

547.321. Headlamps Required547.3215. Use of Federal Standard547.322. Tail lamps Required547.323. Stoplamps Required547.324. Turn Signal LampsRequired547.325. Reflectors Required

49 C.F.R. Section 571.108NHTSA - Safety Standards

Colored Light BulbsEnsure that the bulb has a “DOT”1

or appropriate SAE2 stamp on it.Currently, there are no DOTapproved “red” bulbs.

Vehicle lighting equipment is coveredin Chapter 547 of the Texas Trans-portation Code, Subchapter D.

Section 547.3215. Use of FederalStandard. Unless specifically prohib-ited by this chapter, lighting, reflectivedevices, and associated equipment on a

TRAFFIC UPDATE


vehicle or motor vehicle must complywi th :

(1) the current federal standards in 49C.F.R. Section 571.108; or

(2) the federal standards in that sectionin effect, if any, at the time the vehicleor motor vehicle was manufactured.

The C.F.R. will refer you to Societyof Automotive Engineers (SAE)#J578, which will refer to severalother SAE standards. Everything thatcomplies with those standards is“legal.” All vehicle lighting equipmentshould meet 49 C.F.R., Section571.108. Equipment manufacturer’shave to self-certify that they meetthese standards. DOT does not testequipment unless they act againstthose who don’t meet standards. Youshould ensure that the equipmentvendor is reputable and that allequipment has a DOT or appropriateSAE stamp on it (or if not marked,keep the box that it comes in thatsays it is “DOT approved”) and underno circumstances use equipment thatis for “off-road or show only.”

Are Clear Tail Lamp Lenses (withred bulbs) Legal in Texas?

No. Clear tail lamp lenses utilizingred bulbs that do not meet SAEstandard J585e (September 1977) arenot in compliance with federalstandards (NHTSA, 49 C.F.R.571.108). Under Section 547.3215,this standard has been adopted byTexas and therefore it is in violationof Texas law (Section 547.322, Section547.325) and is punishable as a ClassC misdemeanor under Section547.004(a)(3).

Background

There is a growing popular modifica-tion to replace the OEM3 tail lamplens with a clear lens that uses a redbulb. (However, this can apply to anyother color of replacement bulb.)

Discussion

The Texas Transportation CodeSection 547.101 allows for the adoptionof rules and standards regarding vehicleequipment to protect the public andenforce safety standards. Section547.3215 requires Texas to use thefederal standard contained in 49 C.F.R.,Section 571.108 or the standards ineffect at the time the vehicle wasmanufactured, unless prohibited bystatute, for the lighting and reflectivedevices. Tail lamps are required bySection 547.322 and must emit a redlight plainly visible at a distance of1,000 feet from the rear of the vehicle.In addition to the lamps required inChapter 547, reflectors are required bySection 547.325. These reflectors mustbe visible at night from 100 to 600 feet(100 to 350 feet for a pre-1972 vehicle)when directly in front of lawful lowerbeams of headlamps. Section 547.303requires these reflectors on the rear ofthe vehicle and must be or reflect red.Section 547.004(a)(3) makes it a Class Cmisdemeanor to allow or operate avehicle that is in violation of therequirement of Chapter 547. TheNational Highway Traffic SafetyAdministration (NHTSA) sets thefederal standards for this equipment forboth OEM and replacements in 49C.F.R., Section 571.108. NHTSA hasreceived complaints about these after-market clear lamp lenses. They havealready acted against the equipmentsupplier with fines and are forcingrecalls. The primary grounds used byNHTSA were:

1. Clear lamps lacked the necessarycolored reflectors that were containedin the factory equipment as required by49 C.F.R. 571.108.

2. No “red” bulb has been certified thatemits light to the required standardcontained in 49 C.F.R. 571.108 [SAEStandard J578 (3.1.1) Red].

For additional information, visit this“unofficial” web site: http://fmvss108.tripod.com/.

References:

Texas Transportation Code49 C.F.R. Section 571.108NHTSA - Safety Standard

Engine Swapsand Kit Cars

Engine Swaps

Rules regulating engine swappingare not make/model specific. Thesimple rule is that a vehicle musthave all emissions components thatwere present when it was manufac-tured, which may include:

PCV - positive crankcase ventilationACL - air cleaner (thermostatic aircleaner)AIS - secondary air injectionEGR - exhaust gas recirculationEVAP - evaporative emissionCAT - catalytic convertorSPK - spark controlFR - fillpipe restrictorO2S - oxygen sensor

For additional information, visithttp://es.epa.gov/oeca/ore/aed/comp/jcomp/j12.html.

Kit Cars

Vehicles have to meet the emissionsstandards for the year the vehicle isassembled. Vehicle manufacturershave to certify that their vehiclesmeet Environmental ProtectionAgency (EPA) emissions standards.A lot of kit car manufacturers alsocomply with this requirement. Ifyou purchase one of these kit carsand follow the instructions onassembly, including the emissionscomponents, you should be able topass an emissions test just like anyother new car.

Just as the EPA does not allow anindividual to reverse engineer avehicle to defeat emission standards,


Vehicle Inspection CriteriaNot inspected

State Law35% light transmittance

Vehicle Inspection CriteriaNot inspected

State Law35% light transmittance ifvehicle does not have leftand right side view mirrors

Vehicle Inspection Criteria20% light transmittance

State Law25% light transmittance

Vehicle InspectionCriteria and State LawCannot extend past theAS-1 Line or five inchesfrom the top of thewindshield

it does not allow an individual tobuild a brand new “old” vehicle tobypass emissions standards. It ispossible, if you actually use old parts(like a 1965 engine, or complete 60sframe and powertrain) that thevehicle will be registered as thatmodel year (replica), but this is aTXDOT issue. However it is regis-tered is how DPS inspection stationswill test it.

For additional information, visitwww.epa.gov/otaq/imports/kitcar.htm.

Window TintingWhat’s Inspected

#1. Windshield tintingcannot extend down-ward beyond the AS-1line or more than fiveinches from the top ofwindshield on vehicleswithout an AS-1 line.

#2 . Windows immediately to theright and left of the driver, which

open, cannot have less than 20% lighttransmittance.

What Can I Get a Ticket For?

Transportation Code, Section547.613. Restrictions on Windows:

(a) Except as provided by Subsection (b), aperson commits an offense that is a mis-d emeano r :

(1) if the person operates a motor vehiclethat has an object or material that is placedon or attached to the windshield or sideor rear window and that obstructs or re-duces the operator’s clear view; or

(2) if a person, including an installeror manufacturer, places on or attachesto the windshield or side or rear win-dow of a motor vehicle a transparentmaterial that alters the color or reducesthe light transmission.

(b) This section does not apply to:

(1) a windshield that has a sunscreen-ing device that:

(A) has a light transmission of 33

percent or more;

(B) has a luminous reflectance of 35percent or less;

(C) is not red or amber; and

(D) does not extend downwardbeyond the AS-1 line or more than fiveinches from the top of the windshield,whichever is closer to the top of thewindshield;

(2) a front side wing vent or window,a side window to the rear of the vehicleoperator, or a rear window that has asunscreening device that has a lighttransmission of 35 percent or more anda luminous reflectance of 35 percent orless;

(3) a rear window, if the motorvehicle is equipped with an outsidemirror on each side of the vehicle thatreflects to the vehicle operator a view ofthe highway for a distance of at least200 feet from the rear;

(4) a rearview mirror;

(5) an adjustable nontransparent sunvisor that is mounted in front of a side


window and not attached to the glass;

(6) a direction, destination, ortermination sign on a passengercommon carrier motor vehicle, if thesign does not interfere with the vehicleoperator’s view of approaching traffic;

(7) a rear window wiper motor;

(8) a rear trunk lid handle or hinge;

(9) a luggage rack attached to the reartrunk;

(10) a side window that is to the rearof the vehicle operator on a multipur-pose vehicle;

(11) a window that has a UnitedStates, state, or local certificate placedon or attached to it as required by law;

(12) a motor vehicle that is notregistered in this state;

(13) a motor vehicle with amanufacturer’s model year before 1988;

(14) a vehicle that is:

(A) used regularly to transportpassengers for a fee; and

(B) authorized to operate underlicense or permit by a local authority;o r

(15) a vehicle that is maintained by alaw enforcement agency and used forlaw enforcement purposes.

(c) A manufacturer shall certify to thedepartment that the device made orassembled by the manufacturer complieswith the light transmission and lumi-nous reflectance specifications estab-lished by Subsection (b).

(d) The department may determine thata window that has a sunscreeningdevice is exempt under Subsection (b)(2)if the light transmission or luminousreflectance varies by no more than threepercent from the standard established inthat subsection.

(e) It is a defense to prosecution underthis section that the defendant or apassenger in the vehicle at the time ofthe violation is required for a medicalreason to be shielded from direct rays ofthe sun.

(f) It is not an offense under this sectionfor a person to offer for sale or sell amotor vehicle with a windshield orwindow that does not comply with thissection.

(g) In this section:

(1) “Installer” means a person whofabricates, laminates, or tempers asafety glazing material to incorporate,during the installation process, thecapacity to reflect light or reduce lighttransmission.

(2) “Manufacturer” means a personwh o :

(A) manufactures or assembles asunscreening device; or

(B) fabricates, laminates, or temperssafety glazing material to incorporate,during the manufacturing process, thecapacity to reflect light or reduce lighttransmission.

______________1 DOT: Department of Transporta-tion2 SAE: Society of Automotive Engi-neers3 OEM: Original Equipment Manu-facturer

Reprinted with permission from theweb site of the Texas Department ofPublic Safety (www.txdps.state.tx.us/vi/misc/modifications.htm).

Houston Clerks

In the last year, a group of Houston municipal court clerks worked with Judge Daniel W. Simms to form a study groupto work collaboratively on Level I of the Municipal Court Clerks Certification program. Working in the evenings,over weekends, and on breaks, around 25 clerks studied the ten units in preparation for the examination that wasgiven on April 6, 2002 in Houston. Howard LaFleure served as the group’s contact person with TMCEC. Howardcommented, “It was great having the judge’s help – he would encourage us and answer our questions.” The groupcontinues to grow as some work on Level II and new members join to study Level I.

B


deferred disposition statute alreadycontained a lengthy list of optionalremedial and rehabilitative conditionsthat could be ordered by the court,within years the Legislature furtherexpanded the rehabilitative/remedialprobation options available to thecourts.4

Key Features

Despite “being on the books” fornearly 20 years, feedback from thisyear’s TMCEC academic programsuggests that many municipal judgeshave historically not fully appreciatedthe options at their disposal underArticle 45.051.

Greater Sentencing Discretion

At the conclusion of the deferralperiod, at dismissal, if the defendantpresents satisfactory evidence that heor she has complied with the require-ments imposed, the judge may imposeand collect a special expense not toexceed the original amount of the fineassessed prior. Dependent upon thefacts and circumstances at hand, theimposition of the lesser “specialexpense fee” may be deemed appro-priate by the judge when the defen-dant was accused of an offense with arelatively high mandatory minimumfine (e.g., handicapped parking).Alternatively, in the event a defen-dant does not present satisfactoryevidence of complying with the termsof the deferral, the court has theoption of imposing the fine originallyassessed (less any portion alreadypaid) or reducing the fine assessed.

Informed Decision Making

Often judges encounter defendantswhose criminal behavior is abyproduct of an underlying physical,mental, or sociological condition.Analogous to a pre-sentencing investi-gation in district court, Article45.051(b)(5) authorizes a judge toorder defendants to submit to a

psychosocial assessment (see relatedarticle on page 11 in this newsletter).Psychosocial assessments and diagnos-tic testing are an opportunity for thecourt to obtain insight into themotives and behaviors of defendants.The information obtained from apsychosocial assessment not onlyenables a court to custom tailor adeferral order to the needs of thedefendant, but the informationobtained may prove critical inpreventing future harm to thedefendant and other members of thepublic. The law authorizes the courtto order the defendant to pay thecosts of any diagnostic testing,psychosocial assessment, or participa-tion in a treatment or educationprogram either directly or throughthe court as court costs.5

Rehabilitation

Once a judge is informed of informa-tion pertinent to the defendant,Article 45.051 authorizes the court toissue various rehabilitation and/ortreatment orders that meet thespecific needs of the defendant. Suchcourt orders may require professionalcounseling, alcohol or drug testing,drug abuse treatment, and educationprograms.

Therapeutic Jurisprudence

The authority of a judge to makedecisions affecting the lives of defen-dants is an inherent part of thejudicial process. Though the historyof local judges influencing the lives ofthe citizenry dates back to the Bible,the legal system has long lacked aterm describing such influence.

Therapeutic jurisprudence is the“study of the role of the law as atherapeutic agent.” 6 Since its incep-tion, therapeutic jurisprudence hasemerged in popularity amongst legalscholars and judges. If, as a judge, youbalk at the appearance of the word“therapeutic” being anywhere inproximity with “jurisprudence,”

allow me to put you at ease. Neithertherapeutic jurisprudence, nor itsproponents, suggest or advocate thatjudges should act as therapists. Letme reiterate, judges are not beingasked to give up their robes andbenches for the therapy couch.

To the contrary, therapeutic jurispru-dence is a perspective that simplyacknowledges the potential curative(“therapeutic”) and injurious (“anti-therapeutic”) consequences of the lawand legal procedures on the individu-als involved (i.e., defendants, victims,lawyers, witnesses, and community).It does not suggest that such “thera-peutic” concerns are more importantthan the rule of law or other guidingprinciples. Rather, therapeuticjurisprudence seeks to enrich thejudicial decision making process byincluding factors that might other-wise go unnoticed.

While the term “therapeutic jurispru-dence” may sound grandiose whenspoken, it is a term that all municipaljudges should know. Most municipaljudges have unwittingly been practic-ing therapeutic jurisprudence foryears. Now they have a formal namefor the practice.

One More Important Provision;Two Very Important Questions

In addition to the key featurespreviously described, Article 45.051contains one particular provision thatdeserves special attention. Specifi-cally, Article 45.051(b)(8) providesthat during the deferral period thedefendant may be required to “com-ply with any other reasonablecondition.” Undoubtedly, thisprovision provides the greatestopportunity for the judge to customtailor a deferral order to the specificfacts of the cases and the defendantbefore the court. Such a provision iswhere creative judges claim it pays tothink “outside of the box.”

The provision, however, raises two

Deferred continued from page 1


very important questions:

What is a “reasonable condition?”

While the Court of Criminal Appealshas yet to examine the question in thecontext of deferred disposition, it hasconsidered what constitutes a “reason-able condition” under Article 42.12(deferred adjudication). In such cases,the Court concluded that suchconditions should:

1. Relate to the goal of rehabilitating theoffender while not violating thedefendant’s rights - Although the trialcourt has wide discretion in selectingterms and conditions of probation,permissible conditions should “have areasonable relationship to the treat-ment of the accused and the protec-tion of the public.” They should nothowever be so broad or sweeping asto infringe upon the probationer’srights under the United States orState Constitution (e.g., freedom fromunreasonable searches, free exercise ofreligion).7

2. Be drafted in an unambiguousmanner - Such conditions should “befleshed out to avoid vice of vague-ness” and “made explicit as an aid tothe offender in increasing his under-standing of what is expected ofhim.” 8

3. Be determined only by the judge -Only the court having jurisdiction ofa case shall determine and fix termsand conditions of probation, and suchcourt may not delegate this authorityto a probation officer or anyone else.9

4. Should not require the defendant tocontribute to a charity – While there isno control in case law, the Office ofthe Attorney General suggests thatcharitable contributions are notpermitted. “This language certainlyempowers him to impose non-statutory conditions on the defendantduring the deferral period, but it doesnot, in our opinion, authorize him torequire defendant to contribute

Article 45.051, Code of Criminal Procedure - Suspension of Sentenceand Deferral of Final Disposition

(a) On a plea of guilty or nolo contendere by a defendant or on afinding of guilt in a misdemeanor case punishable by fine only andpayment of all court costs, the justice may defer further proceedingswithout entering an adjudication of guilt and place the defendant onprobation for a period not to exceed 180 days.

(b) During the deferral period, the justice may require the defendantto:

(1) post a bond in the amount of the fine assessed to secure paymentof the fine;

(2) pay restitution to the victim of the offense in an amount not toexceed the fine assessed;

(3) submit to professional counseling;

(4) submit to diagnostic testing for alcohol or a controlled substanceor drug;

(5) submit to a psychosocial assessment;

(6) participate in an alcohol or drug abuse treatment or educationprogram;

(7) pay the costs of any diagnostic testing, psychosocial assessment,or participation in a treatment or education program either directlyor through the court as court costs; and

(8) comply with any other reasonable condition.

(c) At the conclusion of the deferral period, if the defendant presentssatisfactory evidence that he has complied with the requirementsimposed, the justice shall dismiss the complaint, and it shall be clearlynoted in the docket that the complaint is dismissed and that there isnot a final conviction. Otherwise, the justice may proceed with anadjudication of guilt. After an adjudication of guilt, the justice mayreduce the fine assessed or may then impose the fine assessed, less anyportion of the assessed fine that has been paid. If the complaint isdismissed, a special expense not to exceed the amount of the fineassessed may be imposed.

(d) If at the conclusion of the deferral period the defendant does notpresent satisfactory evidence that the defendant complied with therequirements imposed, the justice may impose the fine assessed orimpose a lesser fine. The imposition of the fine or lesser fine consti-tutes a final conviction of the defendant.

(e) Records relating to a complaint dismissed as provided by thisarticle may be expunged under Article 55.01 of this code. If a com-plaint is dismissed under this article, there is not a final convictionand the complaint may not be used against the person for any pur-pose.


A psychosocial assessment is an in-depth study of an individual based ona therapeutic interview by a socialworker, counselor, psychologist, orother mental health professional.The assessment examines and reportson the aspects of an individual’spsychological and social descriptionsthat potentially give insight into aperson’s character and behavior.Psychologically, a psychosocialassessment will describe a person’smental state. Is this person of soundmind? Is there evidence of depres-sion, anxiety, or symptoms of mentalillness? Have there been recentcircumstances that might haveaffected this individual’s mental stateor behavior?Socially, a psychosocial assessment

What Is a PsychosocialAssessment?by Stephanie B. Turner, LMSW

Violence Prevention Counselor – Austin Independent School District

will describe an individual’s socialstanding, occupation or ability towork (if an adult), chronological anddevelopmental age, behavior, andfamily dynamic. A good psychosocialassessment will include a professionalopinion of the individual’s concernsand present condition and willexplain how his or her psychosocialstate relates to such issues.

Courts interested in obtaining suchinformation should first inquire as towhether a defendant has recentlysubmitted to a psychosocial assess-ment. Such evaluations are fre-quently conducted as part of abattery of diagnostic testing by localschools, local or county TexasDepartment of Mental Health and

Psychosocial Assessment: Ahistory meant to help determine thevarious factors that affect a personin his or her daily life. The factorsinclude, but are not limited to thefollowing personal issues:

1. Family history, presentrelationships, and supportsystem

2. Significant life events/recentchanges

3. Marital history and children4. Living conditions and financial

support5. Legal issues6. Current and employment

history7. Cultural (socio-economic)

background8. Religion9. Medical10. Mental health/substance abuse11. Education12. General strengths and

weaknesses13. Barriers14. Prognosis15. Plan

money to a charity. … If the legisla-ture had intended ‘any other reason-able condition’ to include a charitablecontribution, we believe it wouldhave imposed the same monetarylimit.”10

When does a condition constitute an“abuse of discretion?”

Terms imposed as a reasonablecondition are subject to appellatereview under an abuse of discretionstandard. To date, there is no Texascase law on point addressing such anabuse by either a municipal judge orjustice of the peace. The question ofsuch abuse by local trial court judgeshas, however, been considered byTexas legal scholars. “While broad,the court’s discretion is not complete.A condition will be held invalid if it(1) has no relationship to the crimefor which the defendant was con-

victed, (2) relates to conduct thatitself is not criminal, or (3) requires orforbids conduct that is not reasonablyrelated to future criminality. Acondition of probation is undesirableif it is unrelated to rehabilitation andpublic protection, difficult to enforce,violates constitutional rights, orarbitrarily imposes punishment.”11

1 Unless otherwise noted, all statutoryreferences are to the Texas Code ofCriminal Procedure.2 Thomas E. Baker, Charles P. Bubany,“Probation for Class C Misdemeanors: ToFine or Not to Fine Is Now the Question”22 South Texas Law Journal 2 at 249 (1982).3 Originally codified as Article 45.54,Code of Criminal Procedure, the statutewas recodified in 1999 as Article 45.051.4 See Code of Criminal Procedure,Articles 45.052 (Dismissal of MisdemeanorCharge on Completion of Teen CourtProgram) and Article 45.053 (Dismissal of

Misdemeanor Charge on Commitment ofChemically Dependent Person).5 Article 45.051(b)(7), Code of CriminalProcedure.6 David B. Wexler & Bruce J. Winick,Law in Therapeutic Key: Developments inTherapeutic Jurisprudence , xvii (CarolinaAcademic Press 1996). Professors Wexlerand Winick coined the term therapeuticjurisprudence in the late 1980s. Foradditional information and linkspertaining to therapeutic jurisprudence goto www.brucewinick.com.7 Tames v. State, 534 S.W.2d 686(Tex.Crim.App. 1976).8 Flores v. State, 513 S.W.2d 66(Tex.Crim.App.1974).9 McDonald v. State, 442 S.W.2d 386(Tex.Crim.App.1969).10 Tex. Atty. Gen. Opp. JM-307 (1985)11 Baker & Bubany, supra 2 at 254 (Spring1982).

B

Assessment continued on page 12


over both civil and criminal cases, thesame as a justice of the peace. Themayor was also given authority tocollect fines and to enforce collectionby jail time or execution againstproperty.1

In 1875, the Texas Legislature passed asecond law governing the incorpora-tion of cities. It declared the mayor tobe the chief judicial magistrate of thecity until the selection of a recorder. Arecorder was a magistrate with crimi-nal jurisdiction similar to a policejudge or other committing magistrate.A police judge or justice was a magis-trate with similar duties as a justice ofthe peace. The title “police” was usedto distinguish these magistrates fromjustices of the peace whose authorityincluded jurisdiction over civil cases.The 1875 law included express author-ity for mayor magistrates to orderarrests.2

Today, Article 2.09 of the Code ofCriminal Procedure (C.C.P.) lists whoare magistrates and includes mayors,recorders, and judges of municipalcourts of incorporated cities andtowns. Section 29.004 of the Govern-ment Code (G.C.) provides that anyreference to a “recorder” means a“judge of the municipal court.” Thegeneral duties of a magistrate areprovided for in Article 2.10, C.C.P.and include the preservation of thepeace within his or her jurisdiction bythe use of all lawful means and theissuance of all processes (warrants,

capiases, etc.) to help prevent andsuppress crime. Neither Article 2.09nor Article 2.10 provides for thejurisdiction of a magistrate. A 1973case, however, does address the issue.Gilbert v. State, 493 S.W.2d 783(Tex.Crim.App. 1973) held that acity magistrate’s jurisdiction wassimilar to the jurisdiction of a justiceof the peace who had already beenheld to have countywide jurisdictionas a magistrate in Crouch v. State 123S.W.2d 904 (Tex.Crim.App. 1938).Municipal judges and mayors actingin the capacity of a magistrate,therefore, have magistrate power thatextends countywide. If a city issituated in more than one county,the magistrate power would becountywide in each of the counties.

Now, exactly what is a magistrate?Black’s Law Dictionary, FifthEdition, defines a magistrate as apublic officer invested with powergranted by the legislative body thatcreated the office. As noted earlier,Article 2.10, C.C.P. provides forgeneral duties of a magistrate. TheTexas Legislature also provides forspecific duties in various statutesscattered throughout several codes.As can be seen by the MagistrateDuties chart on the following page,magistrate duties are very diverse.(The chart does not include aninclusive list.)

Currently, the Government Codeprovides that, in general-law cities,the mayor is the judge of the munici-

pal court unless the governing bodyauthorizes the appointment orelection of a judge. In which case, themayor ceases to be judge on theenactment of the ordinance.3 A citythat is a home-rule city selects itsjudges according to the provisions inthe city charter. (A general-law city isone that is under 5,000 in population.A home-rule city has at least 5,000 inpopulation and has adopted a home-rule charter.)

Municipal judges preside over themunicipal court to administer thelaws over which they have jurisdic-tion. Municipal judges’ jurisdiction isprovided for in Article 4.14, C.C.P.and in Section 29.003, G.C. andincludes jurisdiction over fine-onlyoffenses that occur within the territo-rial limits of the municipality andproperty owned by the municipalityin the municipality’s extraterritorialjurisdiction.

Municipal judges make decisions onquestions of law or fact. In otherwords, they sit in judgment of casesthat come before them. The JudicialDuties chart on page 14, although notinclusive, does list many duties. Ascan be seen, these duties are scatteredthroughout various statutes in theCode of Criminal Procedure.

Municipal judges and mayors shouldreview the list of magistrate andjudicial duties presented here. Whilesome appear to be similar, the dutiesare exercised in different situations.

Mayors continued from page 1

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Mental Retardation (MHMR)offices, private therapists, or localhospitals.

If no psychosocial assessment exists,courts may contact local or countyoffices of MHMR to arrange anassessment. If the defendant is a childor juvenile, the court may investi-gate the possibility of such an

evaluation being conducted by theschool. When a student has behav-ioral problems at school, such anarrangement may be mutuallybeneficial to both the school and thecourt. Unfortunately, however,schools often lack the time andresources to assist the courts. Accord-ingly, courts may also considerconsulting with county probationservices. County probation offices

frequently contract with local mentalhealth professionals who providesuch services as part of their privatepractice.

Though the need for a psychosocialassessment may infrequently arise, allmunicipal courts should anticipate thepossibility of needing such an assess-ment. Accordingly, all courts shouldassess their options and make prepara-tory arrangements in advance.

Assessment continued from page 11

Mayors continued on page 14


Magistrate Duties Cite

Prevent family violence Article 5.03, C.C.P.

Issue emergency protection orders for an offense involving family violence Article 17.292, C.C.P.

Issue a warrant when any person informs the judge, under oath, of an offense about to Article 7.01, C.C.P.be committed

Conduct peace bond hearings Article 7.03, C.C.P.

Verbally order a peace officer to arrest without warrant when a felony or breach of the peace is Article 14.02, C.C.P.committed in the presence or within the view of a magistrate

Accept complaints (probable cause affidavit) and issue arrest warrants and summonses for Article 15.17, C.C.P.Class A and B misdemeanors and felony offenses

Give magistrate warning after arrest Article 15.17, C.C.P.

Take a plea and set and collect a fine when a defendant is arrested on an out-of-county warrant Article 15.18, C.C.P.for a fine-only offense

Conduct examining trials in felony cases (An examining trial is to determine probable cause in Article 16.01, C.C.P.felony cases prior to indictment.)

Determine the sufficiency of sureties Chapter 17, C.C.P.

Order a defendant to submit to an examination in a mental health facility determined by a local Article 16.22, C.C.P.mental health authority on that authority’s request

Set and accept bail, including personal bonds Chapter 17, C.C.P.

Issue search warrants, except one for mere evidence unless the judge is a licensed attorney of a Chapter 18, C.C.P.court of record

Move to dispose of the weapon if no prosecution or conviction will occur when a weapon has Article 18.19, C.C.P.been seized

Conduct license suspension hearings when the defendant has committed the following:

• driving while license suspended;

• has been responsible as a driver for any accident resulting in serious personal injury, propertydamage, or death;

• habitual, reckless, or negligent driving;

• incapable of safe driving;

• has permitted an unlawful or fraudulent use of license;

• committed an offense in another state that if committed in this state would be grounds forsuspension or revocation;

• has violated a restriction imposed on the use of the license;

• is under 18 years of age and has been convicted of two or more moving violations committed Subtitle B, T.C.within a period of 12 months;

• has not complied with terms of a citation issued by a jurisdiction that is a member of theNonresident Violator Compact of 1977 (now codified in Chapter 703, T.C.) for a violationto which the compact applies;

• has a warrant of arrest outstanding for failure to appear or pay a fine on a complaint issued bya political subdivision that has contracted with the Department of Public Safety under Chapter702, T.C.;

• has committed the offense of fleeing or attempting to elude a police officer;

• has failed to provide medical records or has failed to undergo medical examinations as requiredby a panel of the Medical Advisory Board;• has failed to take or failed to pass an examination required by the director under the Driver’sLicense Act (now codified into Subtitle B, T.C.);• been convicted two times of not maintaining liability insurance;

• is not financially responsible or lacks liability insurance in effect for injuries or property damageat the time of being involved in an accident; and

• evidenced a substantial risk of serious harm to himself, herself, or others (commitment is to thenearest appropriate inpatient mental health facility).


Judicial Duties Cite

Set and take bail Article 17.14, C.C.P.

Forfeit bail Articles 4.14 and 45.044,C.C.P. and Section 29.003(e),G.C.

Take and accept pleas of guilty, nolo contendere, or not Articles 27.14, 27.16, 45.021,gui l ty 45.0215, 45.022, and 45.024,

C.C.P.; Attorney GeneralOpinion H-386

Arraign defendants (Arraignment is a procedure in which Article 26.02, C.C.P.a judge identifies the defendant and requests a plea.)

Enter a plea of not guilty for a defendant who refuses to Article 45.024, C.C.P.plead

Conduct pre-trial hearings Article 28.01, C.C.P.

Grant continuances Chapter 29, C.C.P.

Conduct trials Articles 45.025, 45.027,45.030 C.C.P.

Rule on challenges to the array (membership) of the jury Article 36.07, C.C.P.pool

Enter judgments Article 45.041, C.C.P.

Grant jail-time credit Articles 42.03, 45.041 and45.048, C.C.P.

Determine how a defendant pays fine and costs (time Articles 45.041, 45.049,payment, extensions, community service) C.C.P.

Determine indigence Articles 43.091, 45.048; and45.049, C.C.P.

Waive fine and court costs after a defendant defaults and Article 43.091, C.C.P.the judge determines that the defendant is indigent andthat performing community service would be an unduehardship

Rule on a motion for new trial Article 45.037, C.C.P.

Approve appeal bonds Article 45.0425, C.C.P.

Issue arrest warrants for defendants whose cases are filed Article 45.014, C.C.P.in municipal court

Issue a capias pro fine Article 45.045, C.C.P.

Issue a capias Article 23.04, C.C.P.

Issue a summons for a defendant when requested by the Article 23.04, C.C.P.prosecutor

Issue a summons for a parent of a person under the age Articles 45.0215 and 45.054,of 17 C.C.P.

Grant deferred disposition Article 45.051, C.C.P.

Grant teen court Article 45.052, C.C.P.

Grant driving safety courses Article 45.0511, C.C.P.

Conduct stolen or seized property hearings Chapter 47, C.C.P.

Dismiss cases when required by law or upon prosecutor Article 32.02, C.C.P.motion

For example, a magistrate may issuea warrant of arrest. These warrantsare for Class A and B misdemeanorsand felonies4 that occur anywhere inthe county or counties in which a

city is located. A municipal judge hasauthority to issue a warrant of arrestfor a case that he or she hasjurisdiction over to hear the case.5These are Class C misdemeanors filedin their municipal court.

Also, there are some differences inthe power of an arrest warrant issuedby a mayor magistrate and amunicipal judge magistrate. If amayor magistrate issues a warrant itcan only be executed in the county orcounties in which the city is situatedunless it is endorsed by a judge of acourt of record. In that case, thewarrant may be executed anywherein the state. It can also be endorsedby a magistrate in the county inwhich the warrant will be executed,which allows it to be served in thatcounty.6 The warrants issued bymunicipal judge magistrates who arenot mayors may be served anywherein the state without any type ofendorsement.

Because municipal judge duties andmagistrate duties are scatteredthroughout various codes, mayorsand judges should closely examine thestatutes to determine if they haveauthority as a magistrate to performthe duty or whether it must beperformed by a municipal judge.Mayors who are magistrates onlymay not perform municipal judgeduties.

Both the TMCEC Bench Book andthe clerk’s Level I study guide sectionAuthority and Duties present more in-depth information on magistrateduties and judicial duties. The TexasMunicipal Courts Education Centercan be contacted for moreinformation (www.tmcec.com; 800/252-3218 or 512/320-8274).1 Texas Practice – Municipal Law andPractice, Second Edition, by David B.Brooks of the Texas Bar, West Group1999.2 Texas Practice – Municipal Law andPractice, Second Edition, by David B.Brooks of the Texas Bar, West Group1999.3 Section 29.004(b), G.C.4 Chapter 15, C.C.P.5 Article 45.014, C.C.P.6 Article 15.07, C.C.P.

Mayors continued from page 12

B




RESOURCES FOR YOUR COURT

Courts in DisastersThe Fall 1998 issue of The Judges’ Journal, a publication of the Judicial Divisionof the American Bar Association (ABA), contained a series of articles oncourts and natural disasters, such as floods, earthquakes, and fires. The AJS hasposted these articles on its web site www.abanet.org/jd/home.html. These areexcellent reading materials to help judges and court support personnel preparean emergency disaster relief plan.

The Judges’ Journal is a quarterly publication that contains many interestingarticles on issues related to judicial ethics, court procedures, and bookreviews. An annual subscription for those individuals or institutions that arenot eligible to be members of the Judicial Division of the ABA is $25. Tosubscribe, contact the ABA at 750 N. Lake Shore Drive, Chicago, Illinois60611 or call 312/988-6077.

National CourtCollections Symposium

On July 17-19, 2002 at the Embassy Suites-Love Field in Dallas, a conferenceon fine collections will be held for judges and court support personnel. Thesponsors are the National Center for State Courts, the Institute for CourtManagement, and the Governmental Collectors Association of Texas. Theprogram will emphasize new and innovative collection methods that achieveresults, including technology tools. Registration is $399. For additionalinformation, contact GCAT at 6001 W. Palmer Lane, Suite 370 PMB-161,Austin, Texas 78728.)

Survey Resultson Who

ProsecutesIn Fiscal Year 2001, TMCECsurveyed 1,171 judges as part of theseminar certification process.Following are the responses to twoquestions that dealt with theprosecution of defendants in theircities.

Question: Do you have a municipalprosecutor?

Yes 86.7%No 8.1%

No Response 5.2%

Question: If you answered “yes” tothe above, which of the followingbest describes who prosecutes inyour court?

City attorney’s office 48.2%County attorney’s office 2.6%

Private law firm/practitioner 33.5%Attorney pro tem as needed 2.5%

No response 13.2%

Texas Statutes OnlineThe Texas Legislative Council

has placed the amendedstatutes from the 77th Session

on its web site:www.capitol.state.tx.us/statutes/statutes.html.

http://www.capitol.state.tx.us/statutes/statutes.html


Toll-Free Internet AccessIn cooperation with several other agencies, the Office of Court Administration and Judicial Committee on InformationTechnology have coordinated toll-free Internet access and mail services to rural courts through the FBI’s Law Enforce-ment Online (LEO). Information about system requirements and how to sign up is shown below:

Cost: No connection fees

The Federal Bureau of Investigation provides a nationalfocal point for electronic communication, education, andinformation sharing through the development andoperation of Law Enforcement Online (LEO).

LEO is a national interactive computer communicationssystem and information service. It is a user-friendlyservice that can be accessed by any approved employee ofa duly constituted local, state, or federal law enforcementagency, or approved member of the Texas judiciary.LEO is intended to provide a state-of-the-art communica-tion mechanism to link all levels of law enforcement andjudiciary throughout the United States.

Some of the Services LEO Offers:

• Topical Focus Area• Law Enforcement Special Interest Groups• Free Email• Electronic Calendar• Distance Learning

If you are interested in any of these services, here arethe procedures to obtain a User ID and Password:

Step 1 – Determine what type of access is needed(i.e., Virtual Private Network (VPN) or dial-up).

Requirements for VVPN Connection:

• A member of Texas Judiciary.

• A personal computer or laptop with a Pentiumprocessor and at least 16 MB of RAM.

• Windows 95, 98, NT 4.0, 2000, or ME andInternet access through ISP or LAN connection.

• Internet Explorer version 4.x or higher or Netscapeversion 4.x or higher.

Requirements for Dial-Up Connection:

• A personal computer or laptop with a Pentium proces-sor and at least 16 MB of RAM.

• Windows 95, 98, NT 4.0, 2000, or ME

• Internal or external modem at 28.8k or higher baud rate

• Internet Explorer version 4.x or higher or Netscapeversion 4.x or higher.

Step 2 – Complete appropriate LEO User ApplicationForm for the desired access – VPN or Dial-up. (Call theOffice of Court Administration for an application ordownload it at www.courts.state.tx.us).

• Please mark appropriate eligibility box and complete thefirst signature line.

• The Office of Court Administration will obtain signa-ture from an Agency Head or a Designee.

Step 3 – Submit a request for free dial-up service or anyother LEO service to:

Office of Court AdministrationAttn: Mike Griffth, JCIT Director

205 W. 14th, Suite 600Austin, TX 78701

Office of Court Administration (OCA) will need acompleted, signed application and letter for services tocontinue with the process.

Step 4 – Office of Court Administration will verify thatyou are a member of the Texas judicial system and willcontact you with information on your connectivity.

Law Enforcement Online (LEO)


FROM THE CENTER

CourtStudy Guides

In June, TMCEC sent a complimentaryset of Level I Clerk Certification StudyGuides to each court for use by clerksparticipating in the Municipal CourtClerks Certification Program. Thesewere in a loose-leaf format and courtsare encouraged to duplicate copies forlocal use. More copies may be orderedfrom the Center for $25 each, or theymay be downloaded from the TMCECweb site at www.tmcec.com.

Also, a Municipal Court Guide Level Iwas sent under separate cover to everycourt. This is a bound version of thestudy guides without the review ques-tions. It was designed to be used bymunicipal judges as a resource guide.Courts with more than one judge mayorder additional copies of the MunicipalCourt Guide Level I at no charge bycalling Roxi Salinas at TMCEC (800/252-3718).

In July, municipal courts will receivethe Level II study guides in bothformats.

Code BooksLast Fall, TMCEC sentcomplimentary copies ofthe Texas Criminal Lawand Motor VehicleHandbook (a Gould

publication) to every municipal courtin Texas. A softbound version wassent to the court, and a version in athree-ring binder was sent to everymunicipal judge. TMCEC has devel-oped a set of tabs for use with thebinder version. Please call TMCEC at800/252-3718 to order a set. There isno charge for the tabs.

Congratulations!Two more court administrators have become certified at Level III and arenow entitled to bear the designation “CMCC”, Certified MunicipalCourt Clerk.

In mid-June, Luevada Posey of the Copperas Cove Municipal Court andJanell Kucera of the Sugar Land Municipal Court successfully completedall of the Level III requirements. They are the third and fourth individu-als to achieve this distinction.

For more information about the program, please contact Jo Dale Beardenat TMCEC (800/252-3718).

SummerCertification Testing

TMCEC will offer six regional examination sites for clerks and court adminis-trators who participate in the Clerk Certification program, a project ofTMCEC, TCCA, and TMCA. If testing for the first time, the $50 exam feemust be submitted to TMCEC in advance (checks should be made payable tothe Texas Court Clerks Association). If re-testing, the fee will be waivedduring the summer of 2002.

Houston July 13, 2002 Midland August 3, 2002Dallas July 20, 2002 Waco August 17, 2002San Antonio July 27, 2002

For additional information contact Jo Dale Bearden at TMCEC(800/252-3718) or review the materials on the TMCEC web siteunder clerk certification: http://www.tmcec.com/certprog.html.

Computer Basics CourseThis summer, TMCEC will be offering free computer basics classes to munici-pal judges and clerks at the TMCEC offices in Austin. The sessions will offerbasic instruction in word processing, spreadsheet software, and Internet andemail usage. The Friday programs will begin at 10:00 a.m. and last until 3:30p.m. For those traveling more than 30 miles from their court, a limitednumber of hotel rooms are available at no charge to the participant. Thecomputer equipment is made available by the Judicial Committee on Informa-tion Technology and the Office of Court Administration. To register, callTMCEC at 800/252-3718.

Austin July 19, 2002 Austin August 16, 2002Austin July 26, 2002


TMCEC PROGRAMAUDIOTAPES

The following are audiotape recordings from TMCEC’s 12-hour Judges and Clerks Programs held in El Paso inJuly 2002. Duplicates are available through the Center at no charge to municipal judges and court support person-nel if ordered before August 31, 2002.

JUDGES PROGRAM:

___ Jail Credits - W. Clay Abbott, General Counsel, TMCEC

___ Child Safety and Seat Belt Laws - Mitchell Solomon, Municipal Judge, Austin

___ Alternative Sentencing & Deferred Disposition - Martin Cirkiel, Municipal Judge, Hutto

___ Case Law & A.G. Opinion Update - Ryan K. Turner, Program Attorney & Deputy Counsel, TMCEC

___ Insurance - W. Clay Abbott, General Counsel, TMCEC

___ Court Decorum - Gary Ellsworth, Municipal Judge, Spearman

___ Ordinance and Code Enforcement - Julian Taylor, City Attorney, Freeport

___ Ethics - Thomas Redwine, Municipal Judge, Van Alstyne and Andrew Leonie, Municipal Judge, Lavon

___ Changes in Texas School Attendance Laws - Sharon Newman-Stanfield, Municipal Judge, Fort Worth

___ Breach of the Peace Offenses - Ryan K. Turner, Program Attorney & Deputy Counsel, TMCEC

CLERKS PROGRAM:

___ Clerks and Judges as a Team - C. Victor Lander, Municipal Judge, Dallas

___ New Legislation - W. Clay Abbott, General Counsel, TMCEC

___ Ethics - Tom Broussard, Commission Counsel, Commission on Judicial Conduct, Austin

___ Court Costs & Private Collections - Rene Henry, Collections Projects Manager, Research & Court Services Section, Office of CourtAdministration, Austin

___ Legislative Update: Child Safety & Seat Belts - Margaret Robbins, Program Director, TMCEC

___ Seat Belt Safety: The Importance of Enforcement - Mitch Landry, Program Coordinator, Texas Municipal Police Association, Austin

___ Insurance & Traffic Law Update - W. Clay Abbott, General Counsel, TMCEC

___ Overview of Processing Cases - Margaret Robbins, Program Director, TMCEC

___ Disaster Preparedness for Records/Information Management - Colleen Munds, Government Records Analyst, Texas State Library andArchives Commission, Austin

___ Juvenile Update - Margaret Robbins, Program Director, TMCEC

___ Court Technology - Jo Dale Bearden, Program Coordinator, TMCEC

___ Traffic Reporting Q&A - Margaret Robbins, Program Director, TMCEC

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

Name:

Title:

Court:

Address:

City, State, Zip Code:

Telephone Number:


TEXAS MUNICIPAL COURTS EDUCATION CENTER2001-2002 SUMMER REGISTRATION FORM

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

Last Name: _______________________________ First Name: _____________________________ MI: ____

Date Appointed/Elected/Hired: ____________________ Years Experience: ________ Male/Female: _________

HOUSING INFORMATION

TMCEC will make all hotel reservations from the information you provide on this form. TMCEC will pay for one night in a single occupancyroom for the following seminars : Ethics & the Media and Learn Computer Basics . To share with another seminar participant, you must indicatethat person’s name on this form. (Note: TMCEC does not provide housing for Summer Testing participants.)

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

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

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

Arrival date: ____________________ Mode of Transportation: _____________ r Smoker r Non-Smoker

COURT MAILING ADDRESS

It is TMCEC’s policy to mail all correspondence directly to the court address.

Street: _____________________________________ City: _________________________ Zip: _____________

Office Telephone #: _____________________ Court #: ____________________ FAX #: ___________________

Primary City Served: __________________________ Other Cities Served: _______________________________

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

Status: r Presiding Judge r Associate/Alternate Judge r Justice of the Peace r Mayor r Bailiffr Court Clerk r Deputy Clerk r Court Administrator r Warrant Officerr Prosecutor (A registration fee of $250/$100 must accompany registration form for the TMCEC 12-hour Prosecutors Skills Seminars.)

r Other: ______________________________________________

I certify that I am currently serving as a municipal judge, city prosecutor, or court support personnel in the State of Texas. I agree that I will be responsible for any costsincurred if I do not cancel ten (10) working days prior to the seminar. If I have requested a room, I certify that I live at least 30 miles from or must travel at least 30 minutesto the seminar site.

__________________________________________________________________________________________________Participant Signature Date

TMCEC £ 1609 Shoal Creek Boulevard, Suite 302 £ Austin, TX 78701 £ FAX 512/435-6118

MUNICIPAL COURTS, ETHICS & THE MEDIA:q Tuesday, August 20, 2002 Tyler or Longviewq Wednesday, August 21, 2002 Dallas-Fort Worthq Thursday, August 22, 2002 Lubbock or Abileneq Tuesday, August 27, 2002 Houstonq Wednesday, August 28, 2002 San Antonioq Thursday, August 29, 2002 McAllen or Harlingen

LEARN COMPUTER BASICS:q Friday, July 19, 2002 Austinq Friday, July 26, 2002 Austinq Friday, August 16, 2002 Austin

CLERK CERTIFICATION SUMMER TESTING:q Saturday, July 13, 2002 Radisson Astrodome Houstonq Saturday, July 20, 2002 AmeriSuites Grapevineq Saturday, July 27, 2002 Omni Colonnade San Antonioq Saturday, August 3, 2002 Holiday Inn & Suites Midlandq Saturday, August 17, 2002 Clarion Inn WacoNOTE: TMCEC does not provide overnight hotel stays

for test participants.


Jo Dale BeardenTMCEC Program Coordinator

Does your court have enough storageroom for the documents it generates?When you need access to a file, is italways there? Well, Corpus ChristiMunicipal Court, San Angelo Mu-nicipal Court, and other municipalcourts across Texas can answer YESto both questions because they aremoving towards a paperless court. Apaperless court is a court that storesits files electronically, in digitalformat, instead of storing paper files.

The management of paper is costly.Moving papers through the necessarysteps of filing, docketing, judgmentrecording, and file creating takestime. The process is subject to error,including lost, misplaced, or misfileddocuments. Storage of these docu-ments creates storage costs, retrievalcosts, and maintenance costs. Turn-ing paper documents into electronicdocuments, or starting with elec-tronic documents, allows for one fileor document to be used simulta-neously by users throughout thecourthouse. Storage becomes easierbecause electronic documents arestored on the system server or on aremovable media such as CD-ROM,digital tape, or removable hard drives,which take up less space than fileboxes.

Prior to a discussion of the technol-ogy, two important issues need to bediscussed--the idea of an official courtrecord and records retention. Theunspoken principle underlying theuse of electronic court records is thatthe electronic document is theauthoritative, official record of whatis recorded on it. Municipal courts

Moving Toward Paperless Courtsare granted this right by Art. 45.012,Code of Criminal Procedure (C.C.P),which states that a municipal courtmay issue or maintain documents byelectronic means if the technique doesnot permit changes and there is noother provision of law against it.More specifically, Art. 45.012(e),C.C.P. states, “a record created byelectronic means is an original recordor a certification of the originalrecord.” In order to make the transi-tion to paperless courts, courts mustfirst make the transition from treat-ing paper documents as the officialrecord to treating electronic docu-ments as the official record.

Issues surrounding records retentionmust be reviewed and implemented inall stages of going paperless. KimScofield, Analyst with the Texas StateLibrary and Archives Commission,suggests that courts at all stages ofplanning for paperless courts read theElectronic Records Standards andProcedures, Local Government BulletinB, July 1998. Visit the TSL website atwww.tsl.state.tx.us to locate thisBulletin and other records retentionschedules. Also, if a court is unsureabout its compliance, TSL can bereached at telephone number 512/452-9242 for help. Keep in mind thatrecords retention schedules are notalways about destroying documentstoo soon. A common problem withgoing to paperless courts is thatcourts scan and save documents theyno longer need to retain.

The concept of paperless courts canbe complex. Courts can use manydifferent technologies in many

different ways to reach what theyforesee as most functional for them.That being said, there are two com-mon models being used by courtsmoving toward becoming paperlesscourts. The first includes scanning alldocuments, and the second includescreating electronic documents.

In the first model, a paperless courtmay continue the use of paperdocuments and then scanning thosedocuments to create digitized imagesof legal documents for access onelectronic screens. The scanning caneither be done at the conclusion ofthe case or as new documents on newcases are filed. This is the first steptowards becoming paperless becausethe court is still generating paper but,by creating electronic documents tobe maintained as the court record, thepaper documents can be destroyed.

The second model is the ultimateelectronic model, allowing for paperto be generated only upon request.All documents are created electroni-cally, signatures are applied electroni-cally, and the documents are filedelectronically. The only paperworkgenerated is for the defendant or anattorney to take. It is still necessaryto use a scanning system becausedocuments brought in by a defendantor attorney will need to be scannedand filed in the case file.

Many courts are following the trueidea of being paperless courts andimplementing electronic filing.Electronic filing allows attorneys,defendants, and other courts to filepapers electronically with no scan

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ning. Using the Internet and exten-sible mark-up language, or XML,allows for filings to be sent electroni-cally and the documents automati-cally filed within the court’s casemanagement software, includingautomatically taking the date anddocketing it for trial. (For a look atproposed functional standards forelectronic filing of court documents,visit www.ncsc.dni.us/ncsc/ctp/htdocs/standards.htm.)

To implement either model, or amixture of the two, various technolo-gies are available. Core items includecomputers, servers, scanners, andmultiple software packages. Ascanning workstation with a scannerand a software package that allowsfor indexing, image verification,image storage, and retrieval forviewing are the minimum require-ments for turning paper documentsinto electronic documents. Some typeof case management software,whether based on network or main-frame technology, is important formaintaining the data that bind theelectronic documents with case data.Various servers are needed to supportthe scanning software, the casemanagement software, the network,and data storage. Examples of addi-tional items that could be addedinclude signature pads for capturingsignatures (similar to those used indepartment stores for credit cards)and driver’s license swipe machinesfor electronic data transfer of adefendant’s information. Rememberto protect the court’s data by backingup the data. A backup is saving thecomponents and data of a system toan external source, such as digital tapedrives, CD-ROM drives, or remov-able hard drives. Several backupsystems may be necessary if the courthas several servers, software systems,or storage devices.

Prior to purchasing any technology,it is crucial for a court’s managementto set up a technology plan, imple-

ment the plan, and revise the plan asneeded. In developing a plan, startwith the present route of the paperdocuments, from the creation of thefirst document of a file to the filebeing stored after disposition, docu-menting the path. Using that docu-ment path as a guide, discuss withcourt personnel and vendors how tomake each of those steps electronic.Ask, “How can we take advantage ofthe capabilities of electronic docu-ments to make our work quicker andeasier?” rather than, “What do wehave to do to electronic documents tocontinue to do our work the way wehave always done it?” In the begin-ning stages, it may be difficult toconvince court personnel that theelectronic file is the official courtdocument. Addressing how differentit is to work with electronic docu-ments, rather than paper documents,can do this.

Technology issues to include in theplan prior to purchasing equipmentinclude: experiment with the ma-chines that might be purchased; visitother courts going paperless and askquestions about vendors they areusing; and ask vendors about the typeof images created when documentsare scanned ensuring there is nopotential for altering documents. It isessential for courts to be able tomaintain a document in the exactformat it was scanned because, forthe electronic document to be theofficial court record, the court mustbe able to ensure that it will remainunchanged – in content or in format– from the document originally filed.

Corpus Christi Municipal Court ison its way to becoming a paperlesscourt. With the support of its citycouncil, the court used funds fromthe Court Technology Fund (Art.102.0172, C.C.P.) to purchase com-puters, servers, scanners, software,etc., for maintaining its documentselectronically. Using two types ofsoftware – Court Specialist, Inc.

software for case management andVisiFlow for scanning – CorpusChristi scans all of its paperwork,indexing it for easy location. Anydocuments that require a judge’ssignature are digitally signed by usingthe scanning software to basicallypaste a signature onto the document(electronically captured signatures areallowed by Art. 45.012(h), C.C.P.).The signatures are secured by severalpasswords that only the judge knows.Interestingly, Corpus Christi has itsown computer staff in the courtbuilding. The staff maintains thecomplex court computer system. Thebenefit of having its own staff is thatdown time is minimal and thecomputer department knows itssystem and the court’s needs.

San Angelo Municipal Court has alsorecently made the leap towardsbecoming a paperless court. Thecourt started by upgrading its main-frame system to a network systemwith PCSS software. Prior to imple-menting the new system throughoutthe court, the court set up a trainingroom with four PCs running thesoftware. Using old data from thecourt’s database, everyone in thecourt spent a couple of hours train-ing. For six weeks prior to going live,clerks entered tickets, took payments,processed time payments, and pro-cessed jail credits. Every process thatwould be done on the software wasdone in the training room. The courtalso set up a stand-alone imagingsystem that is not connected to thecase management software at thistime. But, court employees arescanning all paperwork as it comesthrough the court, preparing for thenext step -- installing a scanningsystem that interacts with casemanagement software. The court isalso looking at adding signature padsand driver’s license swipe tools.

Any size court can begin to movetoward becoming a paperless court.The technology is available and


TEXAS MUNICIPAL COURTSEDUCATION CENTER

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

TMCEC MISSIONSTATEMENT

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

Change Service Requested

continues to improve, both throughbeing user-friendlier and in its capa-bilities. Courts no longer have to relyon paper documents to move casesthrough the system.Special thanks to:Judge Rudy Tamez and the staff at theCorpus Christi Municipal CourtLinda Gossett, Court Administrator, SanAngelo Municipal Court

For more information on paperlesscourts and e-filing:

Finding the Way to Electronic CourtRecords, Roger Winters and RobertCary, www.edocmagazine.com/earchives_articles.asp?ID=20551

The Road to a Paperless Court, Paul L.Sherfey, www.wsba.org.barnews/2000/05/sherfey.htm

B

Standards for Electronic Filing Pro-cesses, NCSC, www.ncsc.dni.us/ncsc/ctp/htdocs/standards.htm

E-Court 2002 Conference - Decem-ber 9-11, 2002, sponsored by TheNational Center for State Institutefor Court Management and Technol-ogy Division. For more information,visit http://www.e-courts.org/.

Judicial Education RequirementsMunicipal Judges

Only the following persons are required to attend education programs yearly:

• municipal judges, and

• mayors who are also municipal judges

Mayor Magistrates

When a city adopts an ordinance creating the office of municipal judge, the mayor ceases to be the municipal judge.The mayor, however, is still a magistrate. See Article 2.09, C.C.P. Mayors who are only magistrates and not themunicipal judge of their cities are not required to obtain judicial education. Therefore, the Texas Municipal CourtsEducation Center does not have funds to train mayor magistrates. Likewise, there is no agency that providestraining for mayor magistrates.

Documents

Volume 11 JULY 2002 No. 5 - TMCEC :: Home Recorder/2002/Jul02Recorder.pdfPage 2 Municipal Court Recorder July 2002 Texas Municipal Courts Education Center 1609 Shoal Creek Boulevard,