FUNDED BY A GRANT FROM THE

TEXAS COURT OF CRIMINAL APPEALS

TEXAS MUNICIPAL COURTS

EDUCATION CENTER

2210 HANCOCK DRIVE, AUSTIN, TEXAS 78756

TELEPHONE 512.320.8274

1.800.252.3718

FAX 512.435.6118

TMCEC IS A PROJECT OF THE TEXAS MUNICIPAL COURTS ASSOCIATION

Civil Enforcement

Presented by

Andy Quittner, Prosecutor, City of Seguin

Participants in the session will cover the basics of civil enforcement, with an in depth look at Chapter 43 of the Code

of Criminal Procedure. Participants will explore how to enforce judgments on cases handled in municipal courts that

are not criminal as well as explain what to do when other enforcement options have failed.

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

1. Describe the authority in Chapter 45 of the Code of Criminal Procedure to utilize the civil collection of fines

after judgment;

2. Discuss the methods of collection for fines and costs that cities must prescribe by ordinance; and

3. Contrast an abstract of judgment from a writ of execution.

Time: 1 hour CLE

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Collecting Criminal Fines Through Civil EnforcementPRESENTATION – 2018 -2019ANDREW QUITTNERCITY ATTORNEY660 S. STATE HWY 46SEGUIN, TX 78155830.401.2775AQUITTNER@SEGUINTEXAS.GOV

What we are NOT going to talk about:

Initial decisions to proceed civilly vs. criminally (this is a CODE summit after all)

JuvenilesSuperhero Wardrobes

I said NO CAPES darling

Now go back to work… you’re bothering me

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What we ARE going to talk about:Already have a judgment

(civil or criminal)Judgement is finalDefendant DefaultsHow do you collect?

Four separate aspects to keep in mind

Judicial power over the PERSON (mainly criminal)

Judicial power over PROPERTY (Mainly talking about property today)

Municipal Court PowerCity’s Power to Collect

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Fine and Costs

Art. 45.047. CIVIL COLLECTION OF FINES AFTER JUDGMENT. = final judgment, defendant defaults, civil collection.

Makes collection of criminal and civil judgments (almost) the same at this point.

Civil Collections of Property

City OrdinanceAbstract of JudgmentWrit of ExecutionLots more but these work well for cities

Meet Michael Ironfoot

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Colorful History with City of Little Pockets5 unpaid speeding tickets (totaling

$1,500.00 including court costs)7 Tree Ordinance violations (totaling

$2,200.00)5 Ordinance violations regarding

having a junkyard in his backyard (totaling $2,750.00 in fines and court costs)

How does the “City” Collect? First = collection of fines and costs in criminal

matters are collected by the State of Texas, by and through the municipal prosecutor.

The City is not a proper party to a criminal collection, the state is.

Ordinance civil violations are brought by the City, so the City is a proper party to collection.

Collection OrdinancesCity can create limited

collection ordinancesTex. Crim. Proc. Code

Ann. § 45.203 (West 2017).

Ex. No Permits or Licenses

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Abstract of JudgmentMeet Stompy Ironfoot - dadStompy had $5,000.00 in

ordinance violationsAn Abstract of Judgment

interfered with transfer of property, so he came in and paid

Abstract = lien on real property

Abstract of Judgment In Texas, no lien is

created by the rendition of a judgment.

To perfect a judgment lien, you must first obtain an abstract of judgment.

Cont…

However, the judgment lien is not enforceable against exempt real property of the judgment debtor.

Chapter 52 of the Texas Property Code sets forth the requirements necessary to create a valid judgment lien.

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Cheap way to collectUpon request, the clerk of the court will

prepare the abstract of judgment.Alternatively, the attorney may prepare his

or her own abstract of judgment. Technically the judge can also sign the

abstract, but the City attorney/prosecutor should first request it.

Tex. Prop. Code sec. 52.002.

For criminal collection, makes sure you list the entitled party as the State of Texas by and through municipal prosecutor.

For civil ,make sure you list the City.

Abstract of Judgment constitutes a lien on and attaches to any real property of the Defendant (other than exempt property).

Tex. Prop. Code Ann. § 52.001

It is not a lien, even if filed, if the Defendant posted a bond or security for appeal. But that can be overruled if certain findings are made by the judge. Tex. Prop. Code Ann. §52.0011 (West)

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If they have real property, attach a lien. They cannot sell or transfer the property until the lien is satisfied.

This only works if they have non-exempt real property!

Also, make SURE you have the right Party (i.e. City or State of Texas by and through municipal prosecutor).

Dormancy – Keep Lien ALIVE!!!Abstract of judgment is good for ten (10) years. Tex.

Prop. Code Ann. § 52.006 (West 2015)(one renewal)

If no writ of execution is issued within ten (10) years after rendition of the judgment. Tex. Civ. Prac. & Rem. Code § 34.001 (West 2015)

Thus, it is essential to keep the judgment lien alive by execution within ten (10) years after the rendition of judgment.

Writ of ExecutionA Writ of Execution orders a sheriff or

other authorized person to seize real property, sell it, pay off judgment.

This is the taking of non-exempt property (all kinds)

If the Defendant does not have land, then take other stuff.

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ComplicationsActual collection can start to

become complicatedMany rules which apply to civil

creditors do not apply against the City

But involvement of municipal court is required in order to collect

Michael has no land, lives in an apartment, has no apparent job

Court Procedures -Wrinkle A judgment creditor is entitled to aid from a court of

appropriate jurisdiction through injunction or other means in order to reach property, including present or future rights to property.

Tex. Civ. Prac. & Rem. Code Ann. § 31.002 (West 2015)

However, Tex. Civ. Prac. & Rem. Code 621 (Enforcement of Judgments) applies only to District, County, and Justice Courts.)

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But again, CCP sec. 45.047 states the judge may execute enforcement in the same manner as a civil suit

Tex. Gov’t Code sec. 21.001 states all courts have inherent power to enforce its lawful orders, including authority to issue the writs and orders necessary to aid its judgments.

Know your specific situation

Ordinance v State lawCriminal v CivilAdministrative order v municipal

orderCourt of Record v Non-Record

Court

Writ of Execution - GenerallyCourt issues a writ (your muni ct)Provides writ to local sheriff or

constableSheriff/constable goes to

Defendant and will either seize non-exempt property or collect payment

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Exempt Property is Weird§42.002 – Personal Property Exemptions (Family

$100k; Single $50k) Lots of specific items are listed as exempt 7. Two firearms.. 9. A two-wheeled, three-wheeled, or four-wheeled motor

vehicle for each member of the family or single adult who holds a driver’s license…

10(A). Two horses, mules, or donkeys.. 10(B). 12 head of cattle…

CPRC 31.0025: cannot attach a debtor’s wages

Practical tip: Check with local Sheriff and/or Constable

Sheriffs and Constables are charged with executing any writs for seizure of property. Most have their own procedures for doing so. Check with them.

For explanations of general process, check with Sheriff’s Association of Texas for examples. Let them to their jobs.

Michael has no land, but has a junkyard with 6 cars in various stages

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City of Little Pocket’s prosecutor/city attorney requested writs of execution

Writs issuedSheriff demanded payment and

when Michael was arrested for striking an officer, Sheriff seized 4 of 6 cars (2 were exempt)

Put cars up for sale. Within 4 months provided payment to City.

Extra ToolsDepending on individual

situation, prosecution team decides best course

These are extra tools to use

The End

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CIVIL COLLECTION OF CRIMINAL FINES IN MUNICIPAL

COURT?

Andrew QuittnerCity Attorney

660 S. State Hwy 46 Seguin, TX 78155

830.401.2775aquittner@seguintexas.gov

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I. Intro

Congratulations! As the municipal

judge you presided over a vicious battle

between adversaries in a criminal case. The

State of Texas was victorious in getting a

guilty conviction on the defendant in your

court. The battle was long fought, and the

jury issued the maximum fine of $2,000 for

the specific offense. However, the battle is

not over. The City/State still needs the

defendant to pay the fine. So, how they go

about getting that done and what is the role of

the court?

II. What We are NOT Talking

About

Municipal courts have a variety of

tools enabling them to collect fines and fees.

Additionally, the hosting City has further

tools for collection. Whether it is the court or

the City performing the collection will

depend on the tools to use.

The last legislative session brought

about various changes to the way a court

collects on fines and fees. This article will

touch on them, but primarily, the focus will

be on some of the tools the City has for

collection. This article will not discuss, in

much detail, collection efforts against

indigent individuals or those with no ability

to immediately pay a judgment. The focus of

this article is on collecting from those who

have the means to pay, but simply refuse. Or,

when a judgment is obtained through a civil

abatement or statutory process and needs to

be collected, either against the owner or

against the property.

III. Municipal Court Collection

Tools

Under the Texas Code of Criminal

Procedure art. 45.041:

(a) The judgment and sentence, in

case of conviction in a criminal action

before a justice of the peace or

municipal court judge, shall be that

the defendant pays the amount of the

fine and costs to the state. Tex. Crim.

Proc. Code Ann. § 45.041 (West

2017).

The procedures to follow in assessing

and collecting a fine and court costs were

altered by H.B. 1913 in the by Acts 2017,

85th Leg., Ch. 977 (H.B. 351), § 11.

However, primarily, the changes simply

mandate notice to the defendant, an inquiry if

they have the ability to pay, court monitored

payment methods, and the ability to reduce

the fine or waive the courts costs if certain

determinations are made. Since these

methods are employed primarily when a

defendant does not have the ability to pay

right away, they are not the focus.

IV. City Powers

The governing body of each

municipality shall by ordinance prescribe

rules, not inconsistent with any law of this

state, as may be proper to enforce the

collection of fines imposed by a municipal

court. Tex. Crim. Proc. Code Ann. § 45.203

(West 2017).

This provides any city, general law or

home rule, the ability to pass certain

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ordinances for procedural collection

methods. Such methods are in addition to, but

may not be inconsistent with, state law

collection efforts. An example of such an

ordinance would be one prohibiting issuance

of permits and licenses (such as building

permits or pet licenses) from the City to the

defendant if any judgment debt is owed.

However, the article also prohibits the

City from imposing certain collection

expenses as additional costs onto criminal

judgments.

Additionally, (and this is the big gun

for cities) a city may collect any judgment

through the normal civil process of

collections. Tex. Crim. Proc. Code Ann.

§45.047 (West 2017). However, in order to

utilize this provision, the defendant must first

default on the judgment. Id.

Therefore, the defendant must be

convicted. The municipal court must then

follow the procedures articulated in Tex.

Crim. Proc. Code art. 45.041, be given time

to pay by the judge as part of the judgment,

then fail to comply. Under this procedure, the

defendant would have already been

determined to have the ability to pay within

the time period specified by the judge after an

inquiry. By defaulting after that

determination, the defendant opens him/her-

self up to civil collection efforts.

V. Civil Collection Tools

Entire treatises are written on the

proper way to collect on a civil judgment. As

a result, this article will not address all of the

means and methods available. However, as a

general reference, the primary tools and their

statutory authorizations are as follows:

A. Abstract of Judgment: A

judgment lien is created by the

proper recording and indexing of

an abstract of judgment. The

abstract of judgment must be filed

in each county where the

judgment lien is sought to be

fixed. Tex. Prop. Code §§52.001-

0011 and Tex. Civ. Prac. & Rem.

Code §52.001, et seq.;

a. Dormant Judgments -

Tex. Civ. Prac. & Rem.

Code §34.001;

b. Revival of Judgments -

Tex. Civ. Prac. & Rem.

Code §31.006.

B. Writ of Execution: An execution

is a judicial writ directing the

sheriff or other authorized official

to seize and sell property (real and

personal) to pay off a judgment

debt. Tex. Civ. Prac. & Rem.

Code §§34.001-.067 and 30.018.

a. Property Exemptions:

Tex. Const. art. XVI,

§§49-51; Tex. Prop. Code

§§ 41.001-42.0021.

b. Procedures: Tex. R. Civ.

P. 313, 621-656.

C. Garnishment: An order for the

defendant to turn over certain

sources of income as they come

into his/her possession in order to

pay the judgment. Tex. Civ. Prac.

& Rem. Code §§ 63.001-.008;

Tex. Finance Code §59.001(2),

§59.008, §201.102, §201.103,

§276.002.

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a. Property Exemptions:

Tex. Const. art. XVI, § 28;

Tex. Civ. Prac. & Rem.

Code §63.004; Tex. Prop.

Code §42.001(b)(1).

b. Procedure: Tex. R. Civ. P.

657- 79.

D. Turn Over Orders: The

"turnover statute" applies in those

situations where the debtor's

property "cannot readily be

attached or levied on by ordinary

legal process" and allows the

court to grant injunctive relief,

order a turnover of property or

appoint a receiver. Examples

include accounts receivable, tax

refunds, causes of action

settlements, rents. Tex. Civ. Prac.

& Rem. Code §31.002, §31.0025

and §31.010.

E. Charging Orders: Ehhh… really

this applies to divide up interests

imbedded in a partnership. For

criminal or civil code

enforcement, you should

probably just ignore this one.

F. Writ of Possession: There are

several types. Mainly, a writ of

possession allows the

enforcement of a judgment by

seizing certain property since the

writ itself commands the

constable to return property to the

person entitled under the

judgment. Tex. R. Civ. P. 308-

310.

In certain limited circumstances, pre-

judgment writs may be required, especially in

a code compliance case, in order to secure

property or aspects prior to the conclusion of

the municipal court trial. Such tools include:

G. Writ of Sequestration:

Sequestration is the temporary

seizure by the constable of

specific property to which a party

to a suit has a claim of ownership.

Tex. R. Civ. P. 699.

H. Writ of Attachment (for

property): is a prejudgment

attachment in which the debtor’s

property is seized so that if the

creditor ultimately prevails, the

creditor will be assured of

recovering on the judgment

through the sale of the seized

property. Tex. Civ. Prac. & Rem.

Code §61.001-044; Tex. R. Civ.

P. 592.

VI. Judge Involvement

So, that’s all well and good to know,

but what does the municipal court judge have

to do with such collection efforts?

Deciding which collection options to

use will require the prosecution and city team

to coordinate and perform a cost/benefit

analysis. There are a lot of moving parts to

the decision. This article is not meant to

encourage or direct any specific method, but

to let the team know there are additional tools

available.

However, the municipal court judge

needs to know what the processes are which

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may be utilized by the city or the state and

must respond accordingly.

1) First, the court must be aware of

any collection ordinances adopted

by the city pursuant to Tex. Code

Crim. Proc. art. 45.203. The

ordinance may involve the court

needing to act or get involved

with certain orders.

2) As a collection effort, the city

may seek discovery in aide of

judgment to determine whether

any assets exist worth seizing. If

the city does not get proper

responses, it may seek civil

discovery orders or sanctions in

municipal court. Since the judge

is a municipal court judgement,

the municipal judge is the proper

court to hear such disputes.

3) Abstract of judgements may be

sought by the city or state. The

clerk of the court, upon request,

will prepare the abstract.

However, many municipal clerks

have never seen an abstract of

judgment. The judge may be

requested to prepare the abstract.

However, the judge may also

order the requesting attorney to

prepare the abstract and submit

for review. Tex. Prop. Code sec.

52.002.

4) The abstract of judgment, which

is prepared and filed in municipal

court but filed and indexed in the

county court records, is normally

considered a lien attaching to any

real property owned by the

defendant. However, it is not a

lien, even if filed, if the Defendant

posted a bond or security for

appeal. But that can be overruled

if certain findings are made by the

judge. Tex. Prop. Code Ann. §

52.0011. The court must be

aware such findings may be

requested and that it will need to

make post-judgment findings in

certain circumstances.

5) A judgment creditor is entitled to

aid from a court of appropriate

jurisdiction through injunction or

other means in order to reach

property to obtain satisfaction on

the judgment if the judgment

debtor owns property, including

present or future rights to

property. Tex. Civ. Prac. & Rem.

Code Ann. § 31.002 (West 2017).

6) Art. 45.047 states the judge may

execute enforcement in the same

manner as a civil suit. Tex. Gov’t

Code sec. 21.001 states all courts

have inherent power to enforce its

lawful orders, including authority

to issue the writs and orders

necessary to aid its judgments.

This applies whether you are a

court of record or a court of non-

record.

7) Filings in the court must

accommodate requests for

abstracts, discovery, writs of

execution and other collection

matters which are post-judgment.

The city or state file in municipal

court, not county or district court.