AUTHORITY AND DUTIESAUTHORITY AND DUTIES - TMCEC

AUTHORITY AND DUTIESAUTHORITY AND DUTIESAUTHORITY AND DUTIESAUTHORITY AND DUTIES

Presented byPresented byLeisa HardinLeisa HardinLeisa HardinLeisa Hardin

Court Administrator, CrowleyCourt Administrator, Crowley

DUTIESDUTIES

•• JudicialJudicialM i t tM i t t•• MagistrateMagistrate

•• MinisterialMinisterialMinisterialMinisterial•• AdministrativeAdministrative

AUTHORITYAUTHORITY

•• Judge’s AuthorityJudge’s Authority– Judicial DutiesJudicial Duties– Ministerial Duties– Magistrate DutiesMagistrate Duties

•• Clerk’s AuthorityClerk’s AuthorityMinisterial Duties– Ministerial Duties

– Administrative Duties

Legal AuthorityLegal Authority

The right and power of judges The right and power of judges to require obedience to theirto require obedience to theirto require obedience to their to require obedience to their orders orders lawfully issuedlawfully issued in the in the

scope of their dutiesscope of their duties

Judicial DiscretionJudicial Discretion

The judgment of the court thatThe judgment of the court thatThe judgment of the court that The judgment of the court that is exercised according to is exercised according to

l f ll f lrules of lawrules of law

JUDICIAL DUTIESJUDICIAL DUTIES

• One that requires exercise of judgmentj g

• One that requires a decision of a question of law or fact or choice ofquestion of law or fact or choice of alternatives

MINISTERIAL DUTIESMINISTERIAL DUTIES

• One in which there is nothing left toOne in which there is nothing left to discretion

• A duty that is imposed by law that is• A duty that is imposed by law that is generally administrative in nature

MAGISTRATE DUTIESMAGISTRATE DUTIES

•• All municipal court judges are All municipal court judges are magistratesmagistratesgg

•• Duties scattered throughout codesDuties scattered throughout codes•• Preserve peacePreserve peace•• Preserve peacePreserve peace•• Issue process to prevent and Issue process to prevent and

iisuppress crimesuppress crime•• Cause arrest of offendersCause arrest of offenders

Processing CasesProcessing Cases

Filing CasesFiling Cases

•• Tickets/citations Tickets/citations –– Filed with court when clerk orFiled with court when clerk or judgejudgeFiled with court when clerk orFiled with court when clerk or judge judge

acceptsacceptsticket

–– Serves as complaint for defendant to Serves as complaint for defendant to plea toplea to

DOCKETDOCKET

•• Ministerial dutyMinisterial duty– Can delegate to clerkCan delegate to clerk

•• Enter all cases on docketEnter all cases on docket•• Assign cause/docket numberAssign cause/docket number•• Assign cause/docket numberAssign cause/docket number•• Maintain docketMaintain docket

– Manual docket– Electronic docket Docket

Case FileCase File

•• Ministerial dutyMinisterial duty•• Prepare case filePrepare case filePrepare case file Prepare case file •• File in active filesFile in active files

M i t i filM i t i fil•• Maintain files Maintain files

Defendant’s AppearanceDefendant’s Appearance

•• In open courtIn open court•• By mailBy mailBy mailBy mail•• By delivery of plea and waiver of jury By delivery of plea and waiver of jury

trial to the courttrial to the courttrial to the courttrial to the court•• By mailing fine payment to courtBy mailing fine payment to court

ARRAIGNMENTARRAIGNMENT

•• Judicial dutyJudicial duty•• Defendant in open courtDefendant in open courtDefendant in open courtDefendant in open court

– Judge identifies defendant & requests a plea

•• Defendant can plea guilty, no contest Defendant can plea guilty, no contest or not guiltyor not guilty

•• If defendant refuses to plea, If defendant refuses to plea, judge judge enters a not guilty pleaenters a not guilty plea and sets for a and sets for a jury trialjury trial

Plea Guilty or No ContestPlea Guilty or No Contest

•• JudgeJudge accepts pleaaccepts plea•• JudgeJudge sets fine within penalty rangesets fine within penalty rangeJudgeJudge sets fine within penalty rangesets fine within penalty range•• JudgeJudge determines how defendant determines how defendant

pays finepays finepays finepays fine– Immediately

Ti t– Time payment– Extension– Community service

Suggested Minimum FineSuggested Minimum Fine

•• Only Only judgejudge can set fine schedulecan set fine schedule•• Suggested minimum fine forSuggested minimum fine forSuggested minimum fine for Suggested minimum fine for

defendants who do not want to defendants who do not want to contest casecontest casecontest casecontest case

Appearance by MailAppearance by Mail

•• Defendant Defendant mailsmails in plea of no contest in plea of no contest or guilty and waiver of jury trial and or guilty and waiver of jury trial and g y j yg y j yfine and court costsfine and court costs– Clerk receivesClerk receives – Clerk prepares judgment – Judge accepts pleaJudge accepts plea– Judge signs judgment

Fine Payment for Municipal Court

Appearance at CourtAppearance at Court

•• Plea, waiver and fine and court costs Plea, waiver and fine and court costs delivered to courtdelivered to court– Clerk receives– Clerk prepares judgmentClerk prepares judgment – Judge accepts plea– Judge signs judgmentJudge signs judgment

Payment of FinePayment of Fine

•• Defendant pays fineDefendant pays fine– Payment constitutes a plea of noPayment constitutes a plea of no

contest and written waiver of jury trial•• ClerkClerk receivesreceivesClerk Clerk receivesreceives•• ClerkClerk prepares judgmentprepares judgment

J dJ d t lt l•• JudgeJudge accept pleaaccept plea•• JudgeJudge signs judgmentsigns judgment

Alternative SentencingAlternative Sentencing

Driving Safety CourseDriving Safety Course

•• Defendant requests DSCDefendant requests DSC–– JudgeJudge grants–– ClerkClerk processes request

•• Defendant presents proof of Defendant presents proof of p pp pcompletioncompletion–– ClerkClerk prepares judgment for dismissal

•• Defendant fails to complyDefendant fails to comply–– ClerkClerk sets case for show cause

Deferred DispositionDeferred Disposition

•• Judge Judge has discretion to grant deferred has discretion to grant deferred dispositiondispositionpp

•• ClerkClerk processes paperworkprocesses paperwork•• ClerkClerk maintains file and monitorsmaintains file and monitors•• ClerkClerk maintains file and monitors maintains file and monitors

whether defendant complies with whether defendant complies with terms of probationterms of probationterms of probationterms of probation

Deferred DispositionDeferred Disposition

•• Defendant complies with termsDefendant complies with terms–– JudgeJudge dismisses caseJudgeJudge dismisses case–– JudgeJudge may assess a special expense

•• Defendant fails to complyDefendant fails to comply•• Defendant fails to complyDefendant fails to comply–– JudgeJudge enters judgment and assesses

finefine

Not Guilty PleaNot Guilty Pleayy

Plea Not GuiltyPlea Not Guilty

•• JudgeJudge accepts pleaaccepts plea•• ClerkClerk prepares complaint (prosecutorprepares complaint (prosecutorClerkClerk prepares complaint (prosecutor prepares complaint (prosecutor

writes wording on complaint)writes wording on complaint)

OathOathArt. 45.019, C.C.P. Art. 45.019, C.C.P.

•• Authority to Administer Oath to AffiantAuthority to Administer Oath to Affiant((Person swearing to the complaint))(( g p ))–– JudgeJudge– Clerk/Deputy ClerkClerk/Deputy Clerk– City Attorney/Deputy City Attorney– City SecretaryCity Secretary

•• Authenticate act with impress of court Authenticate act with impress of court sealsealsealseal

OathOathSec. 602.002, G.C.Sec. 602.002, G.C.

•• Provides authority for a municipal Provides authority for a municipal court court judge judge and court clerk to and court clerk to j gj gadminister an oath in any matteradminister an oath in any matter

TRIALSTRIALS

•• Clerk Clerk coordinates trial dates with coordinates trial dates with judge, prosecutor, witnesses, and judge, prosecutor, witnesses, and j g , p , ,j g , p , ,defendantdefendant

•• ClerkClerk schedules trialsschedules trialsClerkClerk schedules trialsschedules trials•• JudgeJudge establishes continuance policy establishes continuance policy

((clerk has no authority to grantclerk has no authority to grant((clerk has no authority to grant clerk has no authority to grant continuancecontinuance))

TRIALSTRIALS

•• ClerkClerk prepares case for trialprepares case for trial– If ticket filed, prepares sworn complaintIf ticket filed, prepares sworn complaint– Issues supboenas (Judge may also issueJudge may also issue)

• A written order summoning a witness to gappear to testify

JURY TRIALSJURY TRIALS

•• JudgeJudge issues writ of venireissues writ of venire– Writ of venire: a written order forWrit of venire: a written order for

summoning prospective jurors•• ClerkClerk summons prospective jurorssummons prospective jurorsClerkClerk summons prospective jurorssummons prospective jurors

– Clerk notifies county assessor collector of permanent exemptions requestedof permanent exemptions requested

•• ClerkClerk coordinates case day of trialcoordinates case day of trialClerk shuffles jury if demanded– Clerk shuffles jury if demanded

JURY TRIALSJURY TRIALS

•• JudgeJudge may direct clerk or bailiff to may direct clerk or bailiff to administer oath to veniremen before administer oath to veniremen before voir direvoir dire– Veniremen: panel of prospective jurorsVeniremen: panel of prospective jurors– Voir dire: questioning of prospective

jurors under oathj•• JudgeJudge may administer oath to jury or may administer oath to jury or

direct someone to administerdirect someone to administerdirect someone to administerdirect someone to administer

PENALTYPENALTY

•• Judge/juryJudge/jury determines fine within determines fine within guidelines of penalty rangeguidelines of penalty rangeg p y gg p y g

•• Court costs collected on all Court costs collected on all convictionsconvictionsconvictions convictions

APPEALAPPEAL

•• ClerkClerk receives bond and stamps date receives bond and stamps date and time received (and time received (keep envelopekeep envelope))(( p pp p ))

•• ClerkClerk sends appealed case to county sends appealed case to county courtcourtcourtcourt

PAYMENT OF FINEPAYMENT OF FINE

•• If no appeal, fine and costs dueIf no appeal, fine and costs due•• JudgeJudge determines how fine paiddetermines how fine paidJudgeJudge determines how fine paiddetermines how fine paid

– ImmediatelyTime payment– Time payment

– ExtensionCommunity service– Community service

– Clerk cannot grant time payment or cannot grant time payment or community servicecommunity servicecommunity servicecommunity service

Defendant Fails to Pay FineDefendant Fails to Pay Fine

•• ClerkClerk monitors paymentsmonitors payments•• ClerkClerk notifies judge when defendantnotifies judge when defendantClerkClerk notifies judge when defendant notifies judge when defendant

fails to make paymentfails to make payment•• ClerkClerk prepares affidavit or gives fileprepares affidavit or gives file•• ClerkClerk prepares affidavit or gives file prepares affidavit or gives file

to judge to reviewto judge to reviewCl kCl k i fii fi•• ClerkClerk prepares capias pro fineprepares capias pro fine

CAPIAS PRO FINECAPIAS PRO FINE

•• Capias Pro FineCapias Pro Fine– Warrant for the judgment (fine andWarrant for the judgment (fine and

costs)•• ClerkClerk gives file togives file to judgejudge to reviewto reviewClerkClerk gives file to gives file to judgejudge to reviewto review•• JudgeJudge issues capias pro fine (signs)issues capias pro fine (signs)

CAPIAS PRO FINECAPIAS PRO FINE

•• Clerk Clerk notifies:notifies:– Police DepartmentPolice Department– Enters on FTA program (if contracted with

DPS))– Notifies warrant collection agency, if

anyy•• ClerkClerk files case in warrant statusfiles case in warrant status

Defendant FTADefendant FTA

DEFENDANT FTADEFENDANT FTA

•• Clerk Clerk prepares sworn complaint if prepares sworn complaint if ticket filedticket filed– Administer oath to affiant– Note on docket of original case, dateNote on docket of original case, date

sworn complaint filed– File complaint with case filep


•• Optional:Optional:– Courtesy Notice to defendant (clerk canCourtesy Notice to defendant (clerk can

prepare and send)– File FTA complaint (prosecutor makes p (p

this decision)


•• Probable Cause AffidavitsProbable Cause Affidavits– Required before judge can issueRequired before judge can issue

warrants– Required for each case q– Affidavits sworn to before a notary

public, judge or clerkjudge or clerkj gj g


•• Clerk Clerk prepares warrantprepares warrant•• JudgeJudge determines if probable causedetermines if probable causeJudge Judge determines if probable cause determines if probable cause

sufficient to issue warrantsufficient to issue warrant•• JudgeJudge signs warrantsigns warrant•• JudgeJudge signs warrantsigns warrant


•• Clerk:Clerk:– notifies police departmentnotifies police department– Enters on FTA program (If contracted with

DPS)– Notifies warrant collection agency, if

any– Files case in warrant status

BONDSBONDS

•• Setting bail Setting bail –– Judicial/Magistrate dutyJudicial/Magistrate dutyJudicial/Magistrate dutyJudicial/Magistrate duty– Peace officer has authority to set and

take if magistrate not availableg•• Determining sufficiencyDetermining sufficiency

–– Judicial/Magistrate dutyJudicial/Magistrate duty–– Judicial/Magistrate dutyJudicial/Magistrate duty•• ClerkClerk files bond with casefiles bond with case

Cl kCl k h d l f t i lh d l f t i l•• Clerk Clerk schedules case for trialschedules case for trial

BONDSBONDS

•• If defendant fails to appear for trialIf defendant fails to appear for trial– Judge declares forfeiture & signsJudge declares forfeiture & signs

judgment nisi (judgment unless)– Clerk files case on scire facias docket (a (

special civil docket for bond forfeitures)– Clerk issues civil citation– Clerk may serve citation by mail– Clerk sets case for trial

BONDSBONDS

•• If defendant appears for trial:If defendant appears for trial:– Court conducts trialCourt conducts trial–– JudgeJudge orders bond refunded to

defendant when all appearances madepp– Clerk processes refund

Judicial DutiesJudicial Duties

Judicial Duties That CAN’T Judicial Duties That CAN’T Be DelegatedBe Delegated

•• Set bailSet bail•• Determine sufficiency Determine sufficiency

f b df b d

•• Enter not guilty pleaEnter not guilty plea•• Conduct preConduct pre--trials and trials and

t i lt i lof bondsof bonds•• Forfeit bailForfeit bail•• Issue warrantsIssue warrants

trialstrials•• Rule on motionsRule on motions•• Grant continuancesGrant continuances•• Issue warrants, Issue warrants,

capias, capias pro capias, capias pro fine, summonsfine, summons

•• Grant continuancesGrant continuances•• Set finesSet fines•• Grant extensions and Grant extensions and

•• Arraignment Arraignment •• Request & accept Request & accept

pleaspleas

time paymentstime payments•• Give jail creditGive jail credit

pleaspleas

Judicial Duties that CAN’TJudicial Duties that CAN’TJudicial Duties that CAN T Judicial Duties that CAN T be Delegatedbe Delegated

•• Determine IndigenceDetermine Indigence•• Allow community Allow community

i t di hi t di h

•• Grant deferred Grant deferred dispositiondispositionC d t t lC d t t lservice to discharge service to discharge

finefine•• Set appeal bondsSet appeal bonds

•• Conduct stolen or Conduct stolen or seized property seized property hearingshearingsSet appeal bondsSet appeal bonds

•• Determine sufficiency Determine sufficiency of appeal bondsof appeal bonds

gg•• Dismiss cases in Dismiss cases in

certain instancescertain instances•• Grant DSCGrant DSC

DISMISSALSDISMISSALS

•• Clerk cannot dismiss casesClerk cannot dismiss cases•• Judge’sJudge’s authority to dismiss limitedauthority to dismiss limitedJudge sJudge s authority to dismiss limitedauthority to dismiss limited

– In certain instances, dismissal requiredrequired

– In some instances, judge’s discretion– In some instances motion from– In some instances, motion from

prosecutor required


•• JudgeJudge required to dismiss:required to dismiss:– Completion of DSCCompletion of DSC– Completion of Deferred– Completion of Teen CourtCompletion of Teen Court– If inspection certificate expired less

than 60 days and defendant gets validthan 60 days and defendant gets valid inspection within 10 working days


•• JudgeJudge required to dismiss:required to dismiss:– Court determines no jurisdictionCourt determines no jurisdiction– Defendant’s speedy trial violated

• Motion before the court– Complaint defective

• Motion to quash before courtq


•• JudgeJudge has discretion to dismiss and has discretion to dismiss and charged a $10 fee when defect charged a $10 fee when defect g $g $remedied:remedied:– Expired Inspection Certificate (expiredExpired Inspection Certificate (expired

more than 60 days)– Expired Driver’s Licensep– Expired Registration

•• ((Clerk cannot note dismissal in docket untilClerk cannot note dismissal in docket until((Clerk cannot note dismissal in docket until Clerk cannot note dismissal in docket until judge signs dismissal judgmentjudge signs dismissal judgment))


•• Defense to Prosecution Defense to Prosecution – Prosecutor makes a motion to dismissProsecutor makes a motion to dismiss– Proof valid at time of arrest– OffensesOffenses

• Fail to present DL• Failure to maintain financial responsibility p y• Failure to display inspection certificate


Financial Responsibility in Effect atFinancial Responsibility in Effect atFinancial Responsibility in Effect at Financial Responsibility in Effect at Time of Alleged OffenseTime of Alleged Offense

After the court After the court verifiesverifies the document, the document, the court shall dismiss the chargethe court shall dismiss the charge


MAGISTRATE DUTIESMAGISTRATE DUTIES•• Prevent family Prevent family

violenceviolenceI t fI t f

•• Explain rights and Explain rights and warningswarningsC d t i iC d t i i•• Issue warrant for Issue warrant for

offense about to be offense about to be committedcommitted

•• Conduct examining Conduct examining trialstrials

•• Set & accept bailSet & accept bail•• Conduct peace bond Conduct peace bond

hearinghearingI t tI t t

Set & accept bailSet & accept bail•• Issue search warrantsIssue search warrants•• Conduct certain Conduct certain

•• Issue arrest warrants Issue arrest warrants & summons (for Class & summons (for Class A and B A and B

administrative administrative hearingshearings

•• Issue emergencyIssue emergencymisdemeanors and misdemeanors and felonies)felonies)

•• Issue emergency Issue emergency mental commitmentsmental commitments


•• Issue emergency protective orderIssue emergency protective order– clerk required to send copy of order toclerk required to send copy of order to

victim if victim was not present when order issued

– Clerk or magistrate required to notify DPS of order to suspend concealed handgun license (this order may be part of emergency protective order)


•• Search Warrant Search Warrant – Clerk shall make copy of affidavit &Clerk shall make copy of affidavit &

make is available to public after search warrant is served

Consequences Delegating aConsequences Delegating aConsequences Delegating a Consequences Delegating a Judicial DutyJudicial Duty

•• Evidence may be suppressedEvidence may be suppressed•• Arrests may be illegalArrests may be illegalArrests may be illegalArrests may be illegal•• Judge, clerk or city may not be Judge, clerk or city may not be

immune from liabilityimmune from liabilityimmune from liabilityimmune from liability– Daniels v. Stovall, 660 F. Supp. 301 (S.D.

Tex.1987)Tex.1987)– Sharp v. State, 677 S.W.2d 513 (Tex.Crim.App.

1984)– Crane v. Texas, 759 F.2d 412 and 766 F.2d 193

(5th Cir. 1985)

Factors Determining JudicialFactors Determining JudicialFactors Determining Judicial Factors Determining Judicial Action Entitled to ImmunityAction Entitled to Immunity

•• Normal judicial functionNormal judicial function•• Act occurred in courtroom or adjunctAct occurred in courtroom or adjunctAct occurred in courtroom or adjunct Act occurred in courtroom or adjunct

spacesspaces•• Controversy centered aroundControversy centered around•• Controversy centered around Controversy centered around

pending casepending caseA t lt f i it t j d i ffi i lA t lt f i it t j d i ffi i l•• Act result of visit to judge in official Act result of visit to judge in official capacitycapacity

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AUTHORITY AND DUTIESAUTHORITY AND DUTIES - TMCEC