INTRODUCTION AND ACKNOWLEDGMENTS - … and acknowledgments The Texas Court Clerks Association and the Texas Court Clerks Education Committee are proud to present this publication to

TCCA MUNICIPAL COURT CLERKS’ PROCEDURE AND REFERENCE GUIDE

INTRODUCTION AND ACKNOWLEDGMENTS The Texas Court Clerks Association and the Texas Court Clerks Education Committee are proud to present this publication to the municipal courts of Texas. It is a procedures and reference guide for court administrators, court clerks, and deputy court clerks. Its format is designed to give clerks step-by-step procedures for municipal court processes. The intention of the authors is to be as practical as the law allows. Statutes and cases are referenced in the “Notes” section of the publication. Also, additional information to help clerks understand the procedures is presented in the “Notes” section. This guide was written and prepared by municipal court clerks for municipal court clerks. Every effort has been made to ensure the accuracy and completeness of this work. The publication includes the 80th Legislative changes. The procedures presented in this publication are intended to be an aid to help municipal clerks and are not a substitute for legal advice. Should any material in this publication conflict with constitutional, statutory, or case law, the law provided by the constitution, statute, or case prevails. The procedures and processes presented in this publication are solely those of the authors and not of the Association. Judges and clerks should contact their city attorneys with any specific questions about the operations of their courts. It is with grateful appreciation, the Texas Court Clerks Association would like to thank the following contributors:

• Shona Bohon, • Rosie Caballero, • Hilda Cuthbertson, • Carol Gauntt, • Tracie Glaeser, • Leisa Hardin, • Pennie Jack • Julie Kubeczka, • Hope Lochridge, • Lisa Mayo, • Tina Plumlee, and • Margaret Robbins.

The Association appreciates the cooperation of the Texas Municipal Court Education Center (TMCEC) for allowing the Association to reference the TMCEC Forms in this publication. The Association acknowledges and appreciates the support of TMCEC in the continuing education of municipal court clerks.

©2007, Texas Court Clerks Association

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PREFACE Managing municipal court records is the responsibility of court administrators and court clerks. Hence, it is important that administrators and clerks understand how to properly handle records requests and records retentions and destruction of records. The following information is not contained within the text of this book. Therefore, a synopsis of these topics is presented here. After reading this information, clerks should talk with their judges, city attorney, and city records manager. Public Information The judiciary is not governed by the Public Information Act, which is codified in Chapter 552 of the Local Government Code. Public access to municipal court records is governed by common law and constitutional law. The common law right to public access of criminal records such as municipal court cases was articulated by the United State Supreme Court case Nixon v. Warner Communications, Inc. 435 U.S. 589, 597, 98 S.Ct. 1306,1306, 1312 (1978), as follows:

“It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents. In contrast to the English practice, … American decisions generally do not condition enforcement of this right on a proprietary interest in the document or upon a need for it as evidence in a lawsuit. The interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen’s desire to keep a watchful eye on the workings of public agencies. …”

In the case of the Star-Telegram, Inc. v. Walker, 834 S.W.2d (1992), the court held that once papers are filed with the court, they become court records and are public. This case dealt with the identity of a rape victim whose identity was disclosed in an indictment, a motion in limine and a charge to the jury. The court held that the records were public because they were part of court records that were public. The constitutional law relating to public access to criminal court records is found in Express-News Corp v. MacRae, 787 S.W.2d 451, 452 (Tex. App.—San Antonio 1990).

“The public’s right to public trials under the First and Fourteenth Amendments to the United States constitution includes a presumption that judicial records will be open to inspection by the press and public. Nixon v. Warner Communication, Inc. 435 U.S. 589, 597, 98 S.C. 1306, 1312 (1978). This presumption of openness may be overcome by a countervailing interest, such as the defendant’s right to a fair trial, but the reason for closure or sealing must be apparent and clearly articulated. Richmond Newspapers v. Virginia, 448 U.S. 555, 581, 100 S.Ct. 2814, 2829-30 (1980); Houston Chronicle Publishing Co. v. Hardy, 578, S.W.2d 495, 499 (Tex. App.-Corpus Christi, 1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1754 (1985).”

What does this mean for municipal court clerks and administrators? It means that municipal court records are open unless there is a statute that makes the record confidential. It is the judge of the court that makes policy about how municipal court records are released. Court administrators and clerks should work with their judges to provide the most expeditious manner of releasing records. Rule 12 of the Rules of Judicial Administration govern certain judicial records under the authority of the judge. The purpose of Rule 12 is expressed in its policy statement as follows:

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“12.1 Policy. The purpose of this rule is to provide public access to information in the judiciary consistent with the mandates of the Texas Constitution that the public interests are best served by open courts and by an independent judiciary. The rule should be liberally construed to achieve its purpose.”

When clerks receive requests for information under Rule 12, they must give the request immediately to the judge to respond. Only the judge may respond to this request and the judge has certain time deadlines requirements in the Rule. Administrators and clerks should have policies and procedures for handling these types of requests for information established by their judges. Records Management Section 203.021, Local Government Code, requires cities to establish, promote, and support an active and continuing program for the efficient and economical management of all local government records. The Local Government Code provides rules and regulations for this end. The State Library and Archives Commission has established required minimum retention periods for all city records, including court records. Cities can adopt more stringent retention periods. If a city has not adopted the required ordinance regarding records retention and destruction of records, the city must get permission from the State Library before destroying records. Chapter 202, Local Government Code governs the destruction of records. It provides for the methods of destruction and personal liability if records are improperly destroyed. Clerks should first check with city records managers for copies of the city ordinance on records retention and destruction of records and if the city does not have an ordinance, the clerk should contact the State Library and Archives Commission at (512) 421-7200. Clerks can visit the State Library website is www.tsl.state.tx.us/ for information on records retention; microfilming standards and procedures, retention schedules for records common to all local governments, information on destruction of records, a copy of the Local Government Records Act, and much more information on records management. Clerks Certification Program Another source of information to help clerks administer and manage their courts is the Municipal Court Clerks Certification Program. This program has been in operation for 11 years and has improved the administration of the courts immeasurably. The Texas Municipal Courts Education Center has the Level I and II Study Guides on its website: www.tmcec.com. Both of these publications contain information about Rule 12 and records management.

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TABLE OF CONTENTS

TABLE OF CHECKLISTS ..................................................................................................................................... IX

ABBREVIATIONS................................................................................................................................................ XIII

CHAPTER 1 CITATIONS AND COMPLAINTS ............................................................................................1

CHAPTER 2 DOCKETING................................................................................................................................5

CHAPTER 3 OVERVIEW OF PROCEDURES...............................................................................................7

CHAPTER 4 DISMISSALS ..............................................................................................................................11

CHAPTER 5 APPEARANCES AND PLEAS .................................................................................................25

CHAPTER 6 DRIVING SAFETY COURSES ................................................................................................27 A. ELIGIBILITY .....................................................................................................................................................27 B. PROCEDURES ...................................................................................................................................................28

1. Mandatory Driving Safety Course/Motorcycle Operator Training Course (Article 45.0511(b), C.C.P.) .28 2. Discretionary Driving Safety Course/Motorcycle Operator Training Course ...........................................35

CHAPTER 7 DEFERRED DISPOSITION .....................................................................................................39 A. TERMS AND CONDITIONS .................................................................................................................................39 B. PROCEDURES ...................................................................................................................................................40

CHAPTER 8 TEEN COURT ............................................................................................................................47

CHAPTER 9 TRIALS........................................................................................................................................49 A. MOTIONS FOR CONTINUANCE ..........................................................................................................................49 B. SUBPOENAS......................................................................................................................................................50 C. JURY TRIALS....................................................................................................................................................52 D. DAY OF JURY TRIAL.........................................................................................................................................57 E. BENCH TRIAL...................................................................................................................................................59 F. NEW TRIAL ......................................................................................................................................................61

CHAPTER 10 SENTENCING ............................................................................................................................63

CHAPTER 11 INDIGENCE ...............................................................................................................................65

CHAPTER 12 METHOD OF PAYMENTS ......................................................................................................67 A. TIME PAYMENTS..............................................................................................................................................67 B. COMMUNITY SERVICE......................................................................................................................................71

CHAPTER 13 RETURNED CHECKS ..............................................................................................................75

CHAPTER 14 APPEAL ......................................................................................................................................77 A. APPEALS FROM A MUNICIPAL COURT OF NON-RECORD ..................................................................................77 B. APPEALS FROM A MUNICIPAL COURT OF RECORD ...........................................................................................80

CHAPTER 15 FAILURE TO APPEAR AND VIOLATION OF PROMISE TO APPEAR.........................85 A. FAILURE TO APPEAR ........................................................................................................................................85

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B. VIOLATION OF PROMISE TO APPEAR ................................................................................................................87 CHAPTER 16 WARRANT OF ARREST..........................................................................................................91

CHAPTER 17 CAPIAS ........................................................................................................................................95

CHAPTER 18 SUMMONS..................................................................................................................................99

CHAPTER 19 CAPIAS PRO FINE...................................................................................................................101

CHAPTER 20 DEFENDANT ARRESTED.....................................................................................................105

CHAPTER 21 JUVENILES AND MINORS ...................................................................................................109 A. JURISDICTION.................................................................................................................................................109 B. WAIVER OF MUNICIPAL COURT JURISDICTION AND TRANSFER OF CHILD TO JUVENILE COURT ....................111 C. APPEARANCE AND GENERAL PROCEDURES ...................................................................................................111 D. TRAFFIC AND OTHER MOTOR VEHICLE MISDEMEANORS...............................................................................116

1. Offenses ...................................................................................................................................................116 2. Penalties...................................................................................................................................................117

E. ALCOHOLIC BEVERAGE CODE .......................................................................................................................119 1. Status Offenses ........................................................................................................................................119 2. General Penalty Provision, Section 106.071, A.B.C. ..............................................................................120 3. Specific Penalty Provision, Section 106.041, A.B.C. – Minor D.U.I......................................................123 4. Alcohol Awareness Program and Community Service ...........................................................................126

(a) Defendant Completes Alcohol Awareness Program and Community Service ....................................126 (b) Defendant Fails to Complete Alcohol Awareness Program or Community Service ...........................127 (c) Defendant Fails to Complete Alcohol Awareness Program or Community Service ...........................128

F. HEALTH & SAFETY CODE ..............................................................................................................................129 1. Tobacco Offenses Committed by Minors ................................................................................................129 2. Penalties for Tobacco Use by Minors. Section 161.253, H.S.C. .............................................................130

G. PENAL CODE OFFENSES .................................................................................................................................132 1. Offenses ...................................................................................................................................................132 2. Penalties...................................................................................................................................................133

H. EDUCATION CODE OFFENSES.........................................................................................................................133 1. Offenses ...................................................................................................................................................133 2. Penalties...................................................................................................................................................134

I. ADDITIONAL OPTIONAL SANCTIONS ..............................................................................................................137 J. DEFAULT IN PAYMENT OF FINE OR VIOLATION OF COURT ORDER.................................................................139 K. FAILURE TO APPEAR ......................................................................................................................................141 L. CHILDREN TAKEN INTO CUSTODY .................................................................................................................142 M. CHILDREN TAKEN INTO CUSTODY FOR VIOLATION OF JUVENILE CURFEW ....................................................144 N. UNADJUDICATED CHILDREN, NOW ADULTS (NO APPEARANCE MADE).........................................................145 O. CHILDREN NOW ADULTS WHO FAIL TO PAY – CAPIAS PRO FINE...................................................................147 P. EXPUNCTION..................................................................................................................................................148

1. Expunction under Article 45.0216, C.C.P. ..............................................................................................148 (a) Offenses and Eligibility Requirements ................................................................................................148 (b) Procedures ...........................................................................................................................................149

2. Expungement for minors convicted of offenses under the Alcoholic Beverage Code ............................152 (a) Eligibility .............................................................................................................................................152 (b) Procedures ...........................................................................................................................................152

3. Expungement for Minors Conviction of Tobacco Offenses ....................................................................153 (a) Eligibility Requirements ......................................................................................................................153 (b) Procedures ...........................................................................................................................................154

4. Expunction Procedures for Failure to Attend School Convictions..........................................................155 (a) Eligibility Requirements ......................................................................................................................155

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(b) Procedures ...........................................................................................................................................156 CHAPTER 22 BOND FORFEITURE..............................................................................................................159

A. SURRENDER OF PRINCIPAL.............................................................................................................................159 B. DAY OF APPEARANCE ON CRIMINAL CHARGE ...............................................................................................159 C. ISSUANCE OF CAPIAS ......................................................................................................................................160 D. DECLARING THE FORFEITURE ........................................................................................................................161 E. SCIRE FACIAS DOCKET ..................................................................................................................................161 F. ISSUANCE OF CITATION..................................................................................................................................162 G. WAIVER OF SERVICE OF CITATION.................................................................................................................162 H. SERVICE OF CITATION....................................................................................................................................163 I. FILING DEFENDANT’S ANSWER .....................................................................................................................167 J. SETTING CASE ON SCIRE FACIAS DOCKET ......................................................................................................168 K. BOND FORFEITURE TRIAL..............................................................................................................................169 L. JUDGMENTS ...................................................................................................................................................173 M. NEW TRIAL ....................................................................................................................................................177 N. BILL OF REVIEW ............................................................................................................................................177 O. BOND FORFEITURES UNDER ARTICLE 45.044, C.C.P. ....................................................................................178

CHAPTER 23 DPS REPORTING....................................................................................................................181 A. ALCOHOLIC BEVERAGE CODE .......................................................................................................................181 B. PENAL CODE..................................................................................................................................................186 C. HEALTH AND SAFETY CODE ..........................................................................................................................189 D. TRANSPORTATION CODE................................................................................................................................190 E. EDUCATION CODE..........................................................................................................................................195 F. NEW TRIAL ....................................................................................................................................................197 G. APPEALS ........................................................................................................................................................197 H. CHART OF FORMS ..........................................................................................................................................198 I. INFORMATION REPORTED ON FORMS .............................................................................................................200 J. ADDRESSES TO SEND REPORTS ......................................................................................................................203 K. CITY CONTRACTS ..........................................................................................................................................203

CHAPTER 24 ADMINISTRATIVE HEARINGS ..........................................................................................207 A. PROPERTY HEARINGS: DISPOSITION OF STOLEN PROPERTY...........................................................................207 B. JUNK VEHICLE ABATEMENT ..........................................................................................................................208 C. ANIMAL CRUELTY HEARINGS........................................................................................................................209 D. DANGEROUS DOG HEARINGS.........................................................................................................................211

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TABLE OF CHECKLISTS

Chapter Chapter Title Checklist Title Checklist Number Page

Chapter 1 Citations and Complaints Citations and Complaints Checklist 1 Page 1

Chapter 2 Docketing Docketing Checklist 2 Page 5

Chapter 3 Overview of Procedures Overview of Procedures Checklist 3 Page 7

Chapter 4 Dismissals Dismissals Checklist 4 Page 11

Chapter 5 Appearances and Pleas Appearances and Pleas Checklist 5 Page 25

Chapter 6 Driving Safety Courses (Mandatory)

Eligibility Checklist 6-1a Page 27

Procedures Checklist 6-1b Page 28

Driving Safety Courses (Discretionary)

Driving Safety Courses (Discretionary)

Checklist 6-2 Page 35

Chapter 7 Deferred Disposition Terms and Conditions Checklist 7-1 Page 39

Procedures Checklist 7-2 Page 40

Chapter 8 Teen Court Teen Court Checklist 8 Page 47

Chapter 9 Trials Motions for Continuance Checklist 9-1 Page 49

Subpoenas Checklist 9-2 Page 50

Jury Trials Checklist 9-3 Page 52

Day of Jury Trial Checklist 9-4 Page 57

Bench Trial Checklist 9-5 Page 59

New Trial Checklist 9-6 Page 61

Chapter 10 Sentencing Sentencing Checklist 10 Page 63

Chapter 11 Indigence Indigence Checklist 11 Page 65

Chapter 12 Methods of Payment Time Payments Checklist 12-1 Page 67

Community Service Checklist 12-2 Page 71

Chapter 13 Return Checks Return Checks Checklist 13 Page 75

Chapter 14 Appeals Appeals from Municipal a Municipal Court of Non-Record


Appeals from a Municipal Court of Record


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Chapter Chapter Title Checklist Title Checklist Number Page Number

Chapter 15 Failure to Appear and Violation of Promise to Appear

Failure to Appear Checklist 15-1

Page 85

Violation of Promise to Appear


Chapter 16 Warrant of Arrest Warrant of Arrest Checklist 16 Page 91

Chapter 17 Capias Capias Checklist 17 Page 95

Chapter 18 Summons Summons Checklist 18 Page 99

Chapter 19 Capias Pro Fine Capias Pro Fine Checklist 19 Page 101

Chapter 20 Defendant Arrested Defendant Arrested Checklist 20 Page 105

Chapter 21 Juveniles and Minors Jurisdiction Checklist 21-1 Page 109

Waiver of Municipal Court Jurisdiction and Transfer of Child to Juvenile Court


Appearance and General Procedures


Traffic and Other Motor Vehicle Misdemeanors

Offenses Checklist 21-4a

Page 116

Penalties Checklist 21-4b Page 117

Alcoholic Beverage Code Status Offenses Checklist 21-5a Page 119

General Penalty Provisions, Section 106.071, A.B.C.

Checklist 21-5b Page 120

Specific Penalty Provisions, Section 106.041, A.B.C.- Minor D.U.I.

Checklist 21-5c Page 123

Alcohol Awareness Program and Community Service; Defendant completes alcohol awareness Program and Community Service

Checklist 21-5d(1) Page 126

Defendant fails to Complete Alcohol Awareness Program or Community Service

Checklist 21-5d(2) Checklist 21-5d(3)

Page 127 Page 128

Health and Safety Code Tobacco Offenses Committed by Minors

Checklist 21-6a Page 129

Penalties for Tobacco Use by Minors

Checklist 21-6b Page131

Penal Code Offenses Checklist 21-7a Page 132


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Chapter 21 Juveniles and Minors

Education Code Offenses Checklist 21-8a Page 133


General Procedures Additional Sanctions (that may be assessed upon conviction of a juvenile)


Default Payment of Fine or Violation of court Order


Failure to Appear Checklist 21-11 Page 141

Children Taken into Custody Checklist 21-12 Page 142

Children Taken into Custody for Custody for Violation of Juvenile Curfew


Unadjudicated Children Now Adults (No appearance Made)


Children Now Adults Who Fail to Pay – Capias Pro Fine


Expunctions under Article 45.0216, C.C.P.

Offenses and Eligibility Requirements

Checklist 21-16a(1) Page 148

Procedures Checklist 21-16a(2) Page 149

Expunctions for minors convicted of offenses under the Alcoholic Beverage Code

Eligibility Checklist 21-16b(1) Page 152

Procedure Checklist 21-16b(2) Page 152

Expungement for Minors conviction of Tobacco Offenses

Eligibility Checklist 21-16c(1) Page 154

Procedures Checklist 21-16c(2) Page 154

Expunction Procedures for Failure to Attend School Convictions

Eligibility Requirements Checklist 21-16d(1) Page 155

Procedures Checklist 21-16d(2) Page 156

Chapter 22 Bond Forfeiture Surrender of Principal Checklist 22-1 Page 159

Day of Appearance on Criminal Charge


Issuance of Capias Checklist 22-3 Page 160

Declaring the Forfeiture Checklist 22-4 Page 161

Scire Facias Docket Checklist 22-5 Page 161

Issuance of Capias Checklist 22-6 Page 161

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Chapter 22 Bond Forfeitures

Waiver of Service of Citation Checklist 22-7 Page 162

Service of Citation Checklist 22-8 Page 163

Filing Defendant’s Answer Checklist 22-9 Page 167

Setting Case on Scire Facias Docket


Bond Forfeiture Trial Checklist 22-11 Page 169

Judgments Checklist 22-12 Page 173


Bill of Review Checklist 22-14 Page 177

Bond Forfeitures under Article 45.044, C.C.P. (cash bond forfeitures)


Chapter 23 DPS Reporting Alcoholic Beverage Code Checklist 23-1 Page 181

Penal Code Checklist 23-2 Page 186

Health and Safety Code Checklist 23-3 Page 189

Transportation Code Checklist 23-4 Page 191

Education Code Checklist 23-5 Page 195


Appeals Checklist 23-7 Page 197

Chart of Forms Checklist 23-8 Page 198

Information Reported on Forms


Addresses to Send Reports Checklist 23-10 Page 203

City Contracts Checklist 23-11 Page 203

Chapter 24 Administrative Hearings Property Hearings: Disposition of Stolen Property


Junk Vehicle Abatement Checklist 24-2 Page 208

Animal Cruelty Hearings Checklist 24-3 Page 209

Dangerous Dog Hearings Checklist 24-4 Page 211

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ABBREVIATIONS

USED IN THIS CHECKLIST BOOK

A.B.C. Alcohol Beverage Code

Art. Article

C.C.P. Code of Criminal Procedure

DPS Department of Public Safety

E.C. Education Code

F.C. Family Code

G.C. Government Code

H.S.C. Health and Safety Code

JNA Juvenile Now Adult

L.G.C. Local Government Code

P.C. Penal Code

P.W.C. Parks and Wildlife Code

Sec. Section

T.C. Transportation Code

TMCEC Texas Municipal Courts Education Center

V.A.C.S. Vernon’s Annotated Civil Statutes

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CHAPTER 1 CITATIONS AND COMPLAINTS A complaint is a sworn allegation charging the accused with the commission of an offense. (Article 45.018, C.C.P.)

A citation is a written notice issued to a defendant by a peace officer containing information about an offense, the court the defendant is to appear in, and the date and time to appear in court. A citation is filed with a court for the purpose of allowing a defendant to plea without requiring a sworn complaint to be filed.

Checklist 1 Notes

1. A peace officer, code enforcement officer, animal control officer, anyone in city management, citizen, or any creditable person may file a complaint with the court.

2. Police officer brings citation to court for filing.

3. Clerk or judge may accept citation for filing. a. Clerk reviews citation. b. Clerk enters citation in docket (In most courts

the docket is the case management software.).

Charges in municipal court may be initiated by citation or complaint. Only peace officers have statutory authority to issue citations. Article 14.06(b), C.C.P. and Section 543.003, T.C. If a clerk is unable to read the citation, the clerk sends the citation back to police department. (Note: If there are any changes made on a citation, a sworn complaint must be filed. Article 27.14(d), C.C.P.) When court accepts citation, case is filed. CHECKLIST 2. TMCEC FORMS: DOCKET SHEET. Article 45.017(b), C.C.P., provides authority for courts to maintain and store dockets electronically. Note: Because some police departments use ticket writers, citations are filed electronically. In this instance, the clerks review the citations after they are downloaded to determine if any errors have occurred or if there are any issues with the citations before they are accepted for filing. The citations that are accepted are then filed into the case management software and not data entered. The citations that are not accepted are sent back to the police department for review.

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c. Clerk prepares case file and files case in active files.

4. If defendant pleads not guilty when a citation is filed, the court prepares complaint for trial that complies with Chapter 45. (Articles 45.018 and 45.019, C.C.P.)

Case file can be a file folder, envelope, document imaging system, or whatever helps the court expeditiously handle the files. If defendant and prosecutor agree in writing to go to trial on the citation and file the agreement with the court, the court will not prepare a complaint. Article 27.14(d), C.C.P. A complaint is a sworn statement (affidavit).

a. Usually the clerk prepares the complaint. b. A complaint is not a new case. It is filed on

the same docket as the citation and has the same docket number.

5. If a code enforcement officer, animal control officer or citizen files a charge, they must file a sworn complaint in the court to initiate the charge (case).

If a court does not already have wording for the complaint, the court must contact the prosecutor. The prosecutor is responsible for the wording on the complaint or the court can refer to TMCEC FORMS: COMPLAINTS for sample complaints.

6. Administering the oath to affiant (person swearing to

complaint). a. Person swearing to complaint (affiant) must

be familiar with information contained in complaint.

b. Person administering oath asks affiant to raise

hand and swear that the information contained in the complaint is true.

c. After affiant swears that information is true

and correct, affiant signs complaint in front of person administering oath.

Clerk, deputy clerk, city secretary, judge, city attorney, and deputy city attorney have authority to administer the oath to someone swearing to a complaint. Article 45.019(e), C.C.P. See Section 602.002, G.C., for more persons who have authority to administer oath.

d. Person administering oath signs jurat. e. Court seal is impressed on complaint.

Jurat is the certificate of the person administering the oath. Article 45.012(g), C.C.P.; Section 30.000125, G.C.

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7. If defendant pleads guilty or no contest, court does not need to have a complaint on file in the case.

8. If defendant fails to appear, court must prepare and have on file a complaint on original charge.

Judge may enter judgment when a citation is filed after a plea of guilty or nolo contendere. See CHECKLIST 5. See CHECKLIST 15-1 FOR FAILURE TO APPEAR.

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CHAPTER 2 DOCKETING A docket is a formal record with brief entries of the actions that have occurred in a case. Judges are required to keep and maintain a docket of every case filed in the court. Article 45.017, C.C.P. The docket can be maintained and stored manually or electronically. Most courts have additional information in the docket for management purposes than what is required by statute.

After the court accepts a citation or sworn complaint, the case is filed in court. The next step is to enter the case on the court docket.

Checklist 2 Notes

1. Clerk enters citation or sworn complaint in docket.

2. Clerk or software assigns a docket number to case.

3. The style of the case required to be entered.

After a case is filed, the next step is to enter case into the docket (docket book or case management software on a computer). Article 45.1017, C.C.P. TMCEC FORMS: DOCKET SHEET. Note: Because some police departments use ticket writers, citations are filed electronically. In this instance, the clerks review the citations after they are downloaded to determine if any errors have occurred or if there are any issues with the citations before they are accepted for filing. The citations that are accepted are then filed into the case management software and not data entered. The citations that are not accepted are sent back to the police department for review or prosecutor for a decision on whether to accept for prosecution. Case entered into docket. Usually, software assigns docket numbers. The docket number is used on all orders issued with the case. The style of all cases in municipal court is “The State of Texas vs. defendant’s name.”

4. The clerk enters the nature of the offense.

The “nature” of the offense is the type of offense such as “speeding,” “public intoxication,” “minor consuming alcohol,” etc.

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5. After the judge accepts a plea from the defendant, the

clerk enters the date the defendant entered the plea on the docket.

Clerks cannot ask for or accept pleas from defendants. This is a judicial duty. Clerks, however, can process the paperwork for the judge to accept the plea. See CHECKLIST 5.

6. The clerk enters the verdict of the jury, if any, on the

docket.

If the defendant had a jury trial, the clerk enters the verdict (guilty or not guilty) on the docket. For jury trials, see CHECKLISTS 9-3 and 9-4.

7. After a judge renders a judgment, the clerk enters it on

the docket.

Before a clerk can enter a judgment on the docket, the judge must sign a judgment—this includes mail-in payments, payments at the clerk’s office, dismissals, and judgment after trial.

8. The clerk enters the motion for new trial, if any, and

the judge’s decision on the motion.

After defendants are convicted at trial, they may make a motion for new trial. See CHECKLIST 9-6 for new trials.

9. The clerk must enter whether the defendant appealed his/her case and the date of the appeal.

Defendants have the right to an appeal. Article 44.02, C.C.P. The court enters the date the appeal is sent to the appellate court, which is usually the county court. For appeals, see CHECKLIST 14.

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CHAPTER 3 OVERVIEW OF PROCEDURES The procedures in this checklist present an overview of municipal court processes. The specific, detailed checklists are documented in the “Notes” section.

Checklist 3 Notes

1. Case filed. a. A peace officer, code enforcement officer,

animal control officer, anyone in city management, citizen, or any credible person may file a complaint with the court.

b. Charge (offense) must occur within the

jurisdiction of the court: (1) The location of where the offense

occurred;

(2) The offense is a fine-only misdemeanor; and

CHECKLIST 1. Charges in municipal court may be initiated by citation or complaint. Only peace officers have statutory authority to issue citations. Article 14.06(b), C.C.P. and Section 543.003, T.C. See Article 4.14, C.C.P.; Sections 26.045 and 29.003, G.C.; Section 4.11, C.C.P. and Section 503.092(b), T.C. Municipal courts of record should also look at Section 30.00005, G.C. See also A.G. Op. No. JC-0025. The prosecutor should be aware of complaints filed. If there are any issues with the citation or complaint, the clerk must notify the prosecutor to decide whether to accept the charge. Municipal court’s geographical jurisdiction is the territorial limits of the city, property owned by the city in the extraterritorial limits and extraterritorial limits in cases arising from ordinances regulating outdoor signs (These outdoor sign ordinance regulation may also be filed in justice court.). Sec. 26.045, G.C. and Art. 4.11, C.C.P. Municipal courts of records have some jurisdiction in its extraterritorial limits. Article 4.14, C.C.P. and Section 29.003, G.C. “Fine-only” is defined as an offense that is punishable by fine and such sanctions, if any, as authorized by statute not consisting of confinement in jail or imprisonment. Article 4.14(c), C.C.P.

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(3) Whether the case if filed within

statute of limitations (Article 12.02, C.C.P.).

(4) A defendant cannot be younger than

age 10.

Two years from the date of the commission of the offense occurred. Citation does not stop the statute of limitation; only the filing of the sworn complaint tolls the statute of limitations. Huynh v. State, 901 S.W.2d 480 (Tex. Crim. App. 1995) Article 45.058(h), C.C.P.; Section 51.02(2), F.C.

(5) If a defendant is younger than age 17,

municipal court has no jurisdiction if the defendant is charged with the Penal Code offense of public intoxication.

c. Clerk enters case on docket.

Section 51.03(f), F.C. CHECKLIST 2.

d. If a complaint is filed to initiate proceedings, court may send courtesy notice to defendant about court date or prosecutor may request the judge issue a summons.

Judge is required to have a request from a prosecutor before issuing a summons for a defendant. Article 23.04, C.C.P. TMCEC FORM: SUMMONS FOR DEFENDANT.

2. Appearance. a. Defendant appears. b. Defendant offers plea.

CHECKLIST 5. For appearance procedures for juveniles see CHECKLIST 21-3.

3. Failure to Appear. a. Defendant fails to appear. b. Court issues warrant.

CHECKLISTS 15-1 and 15-2. CHECKLIST 16. For procedures for handling juveniles’ failure to appear see CHECKLIST 21-11.

4. Trial.

a. Defendant pleads not guilty b. Defendant requests a trial.

CHECKLIST 9.

5. Judgment.

CHECKLIST 10.

page 8 2007


a. Judge signs and enters the judgment. b. Clerk enters judgment on docket.

6. Payment.

CHECKLIST 2. CHECKLIST 12.

7. New Trial. a. The defendant files motion for new trial after

being found guilty. b. Clerk gives motions to judge immediately.

CHECKLIST 9-6.

c. Judge determines if sufficient cause to grant new trial.

8. Appeal.

a. Defendant appeals. b. Clerk notes appeal in docket.

CHECKLIST 14. Checklist 2.

2007 page 9



page 10 2007


CHAPTER 4 DISMISSALS Dismissals must have the request of the prosecutor and approval of the judge, with a few exceptions. Article 32.02, C.C.P. In certain cases, the court must dismiss if the person has a valid defense to the prosecution or has performed some required action. In a few cases, the judge has discretion to dismiss.

Checklist 4 Notes

1. Operate motor vehicle without license plates or with one license plate.

a. Defendant shows proof of obtaining the

required license plates and proof of current registration.

b. Clerk makes a copy of proof of compliance.

Note: Some judges require the defendant to appear in open court with evidence of compliance.

c. Clerk accepts payment and receipts payment

of fee (effective 1/1/2008). d. Defendant proves registration insignia is

attached to the car before the defendant’s first court appearance.

e. Clerk prepares judgment and attaches copies

of all required proofs with receipt of payment of fee (fee effective 1/1/2008).

f. Judge reviews evidence and if sufficient, signs

judgment dismissing the case. g. Clerk enters the dismissal judgment on the

docket. h. Clerk archives case file.

The judge may dismiss the charge if defendant obtains the required license plates before the first court appearance and pays a $10 fee (fee effective 1/1/2008). Defendant must have current registration at time of offense. Section 502.404, T.C. Receipt of purchase of plates or other proof of purchase or obtaining license plates. Defendant required to pay fee (fee effective 1/1/2008) in order for the judge to dismiss charge. Registration insignia required to be attached before judge may dismiss charge. The case cannot be noted as dismissed in the court management software or docket book until the judge signs the dismissal judgment.

2007 page 11


2. Expired Motor Vehicle Registration.

a. Clerk verifies the defendant paid the tax

assessor/collector the required late fee prescribed by Section 502.176, T.C.

b. Clerk makes copy of proof of compliance and

payment of late fee.


c. Clerk collects administrate fee not to exceed $20

($20 fee effective 1/1/2008; the $10 fee is effective until 1/1/2008), if judge orders.

The judge may dismiss if the defendant purchases valid registration and pays the required late fee to the tax assessor-collector not later than the 20th working day after the date of the offense or before the defendant’s first court appearance date, whichever is later. Judge may assess $20 ($20 fee effective 1/1/2008; the $10 fee is effective until 1/1/2008) administrative fee. Section 502.407, T.C. “Day” does not include Saturday, Sunday, or a legal holiday. Article 45.003, C.C.P. Maintain a record of payment receipt.

d. Clerk prepares judgment and attaches the following to the judgment:

(1) Proof of compliance.

(2) Proof of payment of late fee to tax

assessor/collector.

(3) Receipt of administrative fee. e. Judge reviews evidence and if sufficient, signs

judgment dismissing the case and orders payment of administrative fee.

f. Clerk enters the dismissal judgment on the

docket. g. Clerk archives case file.

TMCEC FORM: JUDGMENT—DISMISSAL BY THE COURT. The case cannot be noted as dismissed in the court management software or docket book until the judge signs the dismissal judgment.

page 12 2007


3. Display Altered or Obscured License Plates/Registration Insignia.

The judge may dismiss the charge if the defendant remedies the defect before the first court appearance. The court may assess a $10 fee (fee effective 1/1/2008). Section 502.409, T.C.

a. The defendant presents proof of compliance. b. The defendant pays the $10 fee (fee effective

1/1/2008). c. The clerk makes a copy of the proof and

writes a receipt for payment of the fee. d. The clerk prepares the dismissal judgment for

the judge’s signature. e. The clerk gives the judgment and proof of

compliance to the judge. f. The judge reviews the evidence and signs

dismissal judgment and orders payment of the administrative fee.

g. The clerk enters the judgment on the docket. h. Clerk archives case file.

Note: Some judges require the defendant to appear in open court with evidence of compliance. The case cannot be noted as dismissed in the court management software or docket book until the judge signs the dismissal judgment.

4. Fail to Display Driver’s License. a. Defendant present evidence of valid driver’s

license that was valid on the date of the offense.

b. Clerk makes a copy of the valid driver’s

license. c. Clerk gives proof to the prosecutor.


d. Prosecutor makes a motion to the judge to

dismiss the charge.

Section 521.025, T.C. The prosecutor must make a motion to dismiss the charge if the defendant had a valid driver’s license at the time of the offense. The judge must dismiss the charge. The court may assess an administrative fee of $10 (fee effective 1/1/2008).

2007 page 13


e. The clerk prepares the judgment of dismissal. f. Judge reviews prosecutor motion and signs

judgment dismissing the case and orders payment of administrative fee (fee effective 1/1/2008 if the judge decides to order).

g. Clerk enters the dismissal judgment on the

docket. h. The case is archived.

The case cannot be noted as dismissed in the court management software or docket book until the judge signs the dismissal judgment.

5. Expired Driver’s License. a. Clerk makes a copy of proof of compliance

(i.e., driver license).


b. Clerk collects $20 fee ($20 fee effective

1/1/2008; the $10 fee is effective until 1/1/2008) and prepares receipt.

c. Clerk prepares the judgment and attaches the

following to the judgment: (1) Proof of compliance. (2) Receipt of administrative fee. d. Judge grants prosecutor motion, signs

dismissal judgment, and orders payment of administrative fee.

e. Clerk enters the dismissal judgment on the

docket. f. Clerk archives case.

The judge may dismiss the charge if defendant renews his/her driver’s license within 20 working days or before the defendant’s first court appearance date, whichever is later. The judge may assess an administrative fee not to exceed $20 ($20 fee effective 1/1/2008; the $10 fee is effective until 1/1/2008). Section 521.026, T.C. Maintain a record of payment receipt. TMCEC FORM: JUDGMENT—DISMISSAL BY THE COURT. The case cannot be noted as dismissed in the court management software or docket book until the judge signs the dismissal judgment.

page 14 2007


6. Fail to Report Change of Address or Name on

Driver’s License. a. The defendant presents the court evidence of

changing address or name on his/her driver’s license.

b. Clerk makes a copy of new paper driver’s

license with new address or name. c. Defendant must pay $10 administrative fee

(fee effective 1/1/2008) unless waived by judge.

d. Clerk receipts payment. e. Clerk prepares judgment for judge and

presents judgment with evidence of compliance and receipt of payment to judge.

f. Judge reviews evidence and if sufficient, signs

judgment dismissing the case and orders or waives payment of administrative fee (fee effective 1/1/2008).

g. Clerk enters the dismissal judgment on the

docket. h. Clerk archives case.

The judge may dismiss the charge if the defendant changes his/her driver’s license address not later than the 20th working day after the date of the offense pays a $20 administrative fee (fee effective 1/1/2008). The judge may waive the fee in the interest of justice. Section 521.054, T.C. Note: Some judges require the defendant to appear in open court with evidence of compliance. Maintain copy of receipt. The case cannot be noted as dismissed in the court management software or docket book until the judge signs the dismissal judgment.

7. Violate Driver’s License Restriction or Endorsement. a. Defendant presents proof that restriction or

endorsement restriction or endorsement was imposed because of a physical condition that was surgically or other wise medically corrected before date of offense; or

b. Defendant presents proof that restriction or

endorsement was imposed in error and defendant establishes that fact.

c. Defendant pays $10 administrative fee (fee

effective 1/1/2008).

Section 521.221, T.C. The judge may dismiss the charge if: • Restriction or endorsement was

imposed because of a physical condition that was surgically or otherwise medically corrected before the date of the offense, or in error and that fact is established by the defendant;

• DPS removes the restriction or endorsement before the defendant’s first court appearance and the defendant pay an administrative fee.

2007 page 15


d. Clerk copies evidence and receipts payment of

the fee (fee effective 1/1/2008).


e. Clerk prepares judgment. f. Clerk presents judgment and evidence to

judge. g. Judge reviews evidence and if sufficient, signs

judgment dismissing the case and orders payment of administrative fee (fee effective 1/1/2008).

h. Clerk enters the dismissal judgment on the docket.

i. Clerk archives the case.


8. Operate Vehicle with Defective Required Equipment (or in unsafe condition) (Allowed vehicle equipped in violation of law to be moved or driven that is unsafe so as to endanger a person, is not equipped in manner that complies with the vehicle equipment standards and requirements established by Chapter 547, or is equipped in manner prohibited by Chapter 547.) Section 547.004, T.C.

a. Defendant presents proof of remedying the

defect. b. Clerk makes a copy of proof to present to the

judge.

Section 547.004, T.C. The judge may dismiss the charge if the defendant remedies the defect before the defendant’s first court appearance and pays an administrative fee not to exceed $10 (fee effective 1/1/2008). The judge has no authority to dismiss a charge of defective equipment involving a commercial motor vehicle.


c. Clerk accepts and receipts payment of $10 fee

(fee effective 1/1/2008). d. Clerk prepares dismissal judgment for judge’s

signature.

The following is a list of some common equipment violations in Chapter 547: •

•

Affix unauthorized sunscreening device to motor vehicle, Section 547.613(a)(2); Brakes improperly adjusted, Section 547.402;

page 16 2007


e. Judge reviews evidence and if sufficient, signs judgment and orders payment of fee (fee effective 1/1/2008).

f. Clerk may now enter dismissal judgment on

docket. The case cannot be noted as dismissed in the

court management software or docket book until the judge signs the dismissal judgment.

g. Clerk archives case.

•

•

•

•

•

•

•

Brakes not maintained in good working order, Section 547.402; Brakes not on all wheels when required, Sections 547.401 & 547.802; Clearance (or side markers) improperly mounted), Section 547.354; Defective brakes or no brakes, Sections 547.401 & 547.408; Defective exhaust emission system, Section 547.605; Defective head lamps, Section 547.321, 547.302 & 547.801; Defective parking lamps, Section 547.383;

•

•

•

•

•

•

•

Defective safety glazing material, Section 547.608; Defective stop lamp(s), Section 547.323; Defective tail lamp(s), Section 547.322; Defective or no windshield wiper, Section 547.603; Headlamp improperly located on motorcycle, Section 547.801; Improper flashing lights, Section 547.702(c); Improper use of back-up lamps, Section 547.332;

•

•

•

Improperly directed lamps (over 300 candlepower), Section 547.305; Mirror violation (none or improperly located), Section 547.602; Muffler violation (none, defective, loud, cut-out, by-pass). Section 547.604;

•

•

•

No beam indicator, Section 547.333; No electric turn signal lamps, Section 547.324; No headlamps (when not equipped), Sections 547.321 & 547.801;

• No license plate lamp; Sections

2007 page 17


547.322 and 547.801; • No multiple beam lighting

equipment (or defective), Section 547.333 & 547.801;

•

•

•

•

•

•

•

•

•

•

•

No parking brakes or defective parking brakes, Section 547.404; No parking lamps, Section 545.383; No red reflectors on rear, Sections 547.325 & 547.801; No single control to operate all breaks, Sections 547.547.402 & 547.403; No stop lamps, Sections 547.323 & 547.801; No tail lamps, Section 547.322 & 547.801; No two means of emergency brakes, Section 547.405(a); Red lights on front, Section 547.305; Television receiver, video equipment improperly located (visible to driver), Section 547.611; Wrong color clearance lamps, 547.305; Wrong color stop light, license plate light, back-up lamp, signal device, Section 547.332.

9. Expired Motor Vehicle Inspection Certificates expired

less than 60 days.

a. Clerk makes a copy of proof of compliance.


If the inspection certificate has been expired for less than 60 days, the judge shall dismiss the charge if the defendant gets his/her vehicle inspected within 20 working days or before the defendant’s first court appearance date, whichever is later. “Day” does not include Saturday, Sunday, or a legal holiday. Article 45.003, C.C.P.

page 18 2007


b. Clerk collects $20 fee administrative fee ($20

fee effective 1/1/2008; $10 fee effective until 1/1/2008) and prepares receipt.

c. Clerk prepares judgment. Attach the following to the judgment:

(1) Proof of compliance.

(2) Receipt of administrative fee ($20 fee effective 1/1/2008; $10 fee effective until 1/1/2008).

d. Judge reviews evidence and if sufficient, signs

judgment dismissing the case and orders payment of administrative fee ($20 fee effective 1/1/2008; $10 fee effective until 1/1/2008).

e. Clerk enters the dismissal judgment on the

docket. f. Clerk archives case.

The judge shall assess an administrative fee not to exceed $20 ($20 fee effective 1/1/2008; $10 fee effective until 1/1/2008). Maintain a record of payment receipt. If the inspection certificate is expired more than 60 days, the judge may dismiss the charge. Section 548.605, T.C. The court may not assess a fee. TMCEC FORM: JUDGMENT—DISMISSAL BY THE COURT. The case cannot be noted as dismissed in the court management software or docket book until the judge signs the dismissal judgment.

10. Expired Motor Vehicle Inspection Certificates expired more than 60 days.

a. Clerk makes a copy of proof of compliance.


b. Clerk prepares judgment and attaches proof of

compliance.

If the inspection certificate is expired more than 60 days, the judge may dismiss the charge if the defendant gets his/her vehicle inspected within 20 working days or before the defendant’s first court appearance date, whichever is later. No fee may be assessed. “Day” does not include Saturday, Sunday, or a legal holiday. Article 45.003, C.C.P.

2007 page 19


c. Judge reviews evidence and signs judgment.

d. Clerk enters the dismissal judgment on the

docket. e. Clerk archives case.

No fee can be assessed. The case cannot be noted as dismissed in the court management software or docket book until the judge signs the dismissal judgment.

11. Operating a vessel with an expired certificate of number.

a. Clerk makes a copy of evidence of purchase

of new certificate of number (receipt of purchase).


b. Clerk prepares dismissal judgment. c. Judge reviews evidence, and if sufficient,

signs judgment and orders payment of administrative fee (fee effective 1/1/2008).

d. Clerk enters the dismissal judgment on the

docket. e. Clerk archives the case.

Section 31.021, P.W.C. The judge may dismiss the charge if the defendant obtains a new certificate of number not later than the 10th working day after the date of the offense and pays an administrative fee not to exceed $10 (fee effective 1/1/2008). The certificate of number cannot have expired for more than 60 days. The case cannot be noted as dismissed in the court management software or docket book until the judge signs the dismissal judgment.

12. Possession of Child Passenger Safety Seat System. a. Defendant brings satisfactory evidence that

defendant possesses an appropriate child passenger safety seat system for each child required to be secured in a child passenger safety seat system.

b. Clerk makes note of the evidence. c. Clerk prepares judgment for judge. d. Clerk gives judgment and evidence to judge. e. Judge accepts evidence and signs judgment.

Section 545.4121, T.C. Note: Some judges require the defendant to appear in open court with evidence of compliance.

page 20 2007


f. Clerk enters dismissal judgment on docket.


13. Failure to Wear a Safety Belt.

a. The following are defenses to the prosecution. (1) Person possesses a written statement

from a physician. The person must present the letter from the physician to the court not later than the 10th day after the offense.

(2) The person is employed by the postal

service and is performing a duty for that agency that requires the operator to service postal boxes from a vehicle or that requires frequent entry into and exit from a vehicle.

(3) The person is engaged in the delivery

of newspapers from a vehicle or is performing a duty for that company requiring the operator to frequently enter and exit a vehicle.

(4) The person is employed by a public or

private utility company and is engaged in the reading of meters or performing a similar duty for that company requiring the operator to frequently enter or exit a vehicle.

(5) The person is operating a commercial

vehicle registered as a farm vehicle under the provisions of Section 502.163 that does not have a gross weight, registered weight, or gross weight rating of 48,000 pounds or more.

b. Clerk can make copy of proof or set defendant

for hearing before court. c. Prosecutor must review evidence and present

motion to dismiss to the court.

This information must be given to the prosecutor to make a motion to the judge to dismiss.

2007 page 21


d. Clerk prepares judgment of dismissal. e. Judge signs judgment of dismissal. f. Clerk enters judgment on docket.

14. Driving Safety Course (DSC). CHECKLIST 6.

15. Deferral of Final Disposition. CHECKLIST 7.

16. Teen Court.

CHECKLIST 8.

17. Failure to Maintain Financial Responsibility Dismissals.

Section 601.193, T.C. Section 601.053, T.C. Proof may be provided through: • Motor vehicle liability

insurance policy that complies with Subchapter D;

• Surety bond filed under Section 601.121;

• Deposit under Section 601.122; • Deposit under Section 601.123;

or • Self-insurance under Section

601.124.

a. Clerk reviews defendant’s copy of evidence of financial responsibility. Evidence must:

(1) Be valid on the date and for the time

the citation was issued.

(2) Cover the person the citation was issued to or the vehicle being operated.

b. Clerk makes a copy of financial responsibility

and verifies coverage is valid. c. If coverage is NOT valid: (1) Clerk sets case for hearing before

judge. (2) Clerk sends notice of hearing to

defendant.

When verifying, clerk documents: date verified, person clerk spoke to, date and time of violation, and was coverage in effect.

page 22 2007


d. If coverage is valid, clerk prepares dismissal

judgment and attaches the following to the judgment: • Evidence of financial responsibility; and • Documentation of validity.

e. Judge reviews evidence and signs judgment. f. Clerk enters judgment on the docket.

Section 601.193(a), T.C. provides that it is a defense to prosecution that the person charged produces in court one of the documents listed in Section 601.053(a) that was valid at the time that the offense is alleged to have occurred. TMCEC FORM: JUDGMENT—DISMISSAL BY THE COURT. Case cannot be dismissed in the court software or docket until the judge has signed the dismissal judgment.

18. Other Dismissals.

a. Clerk receives motion filed by: (1) Defense: (a) Clerk date and time stamps

the request when received. (b) Clerk provides copy to

prosecutor to review before next appearance date.

Dismissals must have the concurrence of a prosecutor and the judge. Article 32.02, C.C.P.

(c) Clerk provides copy to judge

to review before next appearance date.

(d) Clerk sets case for pre-trial.

(2) State: (a) Clerk date and time stamps

the motion as received. (b) Clerk provides motion to

judge for review. b. If motion granted by judge, clerk prepares

judgment and attaches the motion to the judgment.

If motion requests the judge dismiss a charge, many times this dismissal can be handled prior to the defendant’s appearance date. If the offense is dismissed, the clerk notifies defense of outcome.

2007 page 23


c. After judgment is signed by judge. d. Clerk enters judgment on the docket.

The case cannot be dismissed in the court software or docket until the judge has signed the dismissal judgment.

page 24 2007


CHAPTER 5 APPEARANCES AND PLEAS When a defendant makes an appearance in court, the appearance is a formal proceeding by which a defendant submits himself or herself to the jurisdiction of the court. In a criminal court, a plea is a defendant’s response to a criminal charge. The pleas in municipal court are: guilty, nolo contendere, not guilty, and a special plea of double jeopardy. Only a judge may request and accept a plea from a defendant; a clerk may not ask a defendant for a plea. A clerk may process the plea sheet and payment or request for hearing or trial. Defendants may make an appearance in person or by attorney (adults only) in open court, by delivering a plea to the court, or by mail. A telephone call does not constitute an appearance. Nolo contendere (No contest) means that the defendant is not admitting or denying the charge, but is choosing not to contest the charges in court. In municipal court, a plea of no contest has the same legal effect as a plea of guilty. Article 27.02, C.C.P. Double jeopardy is a prohibition against a second prosecution after a first trial for the same offense. Article 27.05, C.C.P.

Checklist 5 Notes

1. Defendant appears at clerk’s office.

2. Clerk determines what defendant wants to do with his or her case.

a. Defendant wants to plea guilty or no contest. b. Defendant wants to pay fine.

Defendants under the age of 17 must appear in open court with a parent or guardian for all proceedings. See CHECKLIST 21-3. A clerk cannot ask for a plea, but can ask defendant how he/she wants to handle his/her case. A clerk may also explain options available to a defendant. A clerk may not advise a defendant about which option to choose. This is legal advice and only an attorney hired by the defendant may give the defendant legal advice. TMCEC FORM: PLEA FORM. CHECKLIST 12. Payment of fine or an amount accepted by the court constitutes a finding of guilty in open court as though a plea of nolo contendere had been entered by the defendant and constitutes a waiver of a jury trial in writing. Article 27.14(c), C.C.P. Clerks should check with their judges for direction on whether the judge requires the plea in writing. Because this appearance is not before the

2007 page 25


c. Defendants who want to pay fine, but do not

have money to pay any or part of the fine.

judge and the clerk must present this information to the judge, the best option is to process a signed plea and waiver of jury trial for the judge to accept. CHECKLISTS 11 and 12. Clerks have no authority to grant extensions or time payments. Clerks may process extensions and time payments on a judge’s orders.

3. Defendant requests a driving safety course (DSC).

4. Defendant requests deferred disposition.


5. If the defendant does not know what to do (or mentally impaired):

a. Clerk must set defendant for a hearing before

judge. b. Clerk should have defendant sign setting

notice and give defendant a copy of notice.

6. Defendant requests a trial. a. Clerk sets case according to whether

defendant demanded right to jury trial or requested bench trial; clerk should have defendant sign setting notice, and give copy of notice to defendant.

b. Case is set on trial or pre-trial docket and

prosecutor is notified.

Some courts set pre-trials before trial. It is a good idea to have the defendant sign notice for new court date. See CHECKLIST 9. TMCEC FORM: TRIAL SETTINGS – JURY TRIAL SETTING FORM. Prosecutor (city attorney or deputy city attorney) is required to be at all trials to present State’s case. Article 45.201, C.C.P.

page 26 2007


CHAPTER 6 DRIVING SAFETY COURSES To be entitled to a mandatory driving safety course/motorcycle operator training course (DSC/MOC), the defendant must meet certain criteria: The defendant elects (requests) to take DSC/MOC, the election must be on or before the answer date on his or her citation, the defendant is charged with a qualified offense, and the defendant must be eligible.

A. Eligibility Checklist 6-1a Notes

1. The defendant is eligible for DSC if the offense is not: • Speeding 95 per hour or more; • 25 mph or more over limit; • Duty to give information and aid (leaving the

scene of an accident); • Accident involving damage to vehicle (vehicle

is driven or attended)(leaving the scene of an accident);

• Overtaking and passing a school bus; • An offense committed in a construction or

maintenance work zone while workers are present; or

• A serious traffic violation (Defined by Section 522.003(25) T.C.).

2. Defendants must have a valid Texas driver’s license or

permit, proof of active military duty or proof that defendant is spouse or dependant child of a person on active military duty.

3. Defendants cannot have had a commercial driver’s

license when the offense occurred or have a commercial driver’s license when making the request.

4. Defendants must present the court proof of valid

financial responsibility (usually automobile insurance).

Offense must involve the operation of a motor vehicle under: • Subtitle C, Rules of the Road,

T.C. (Chapters 541-600); • Disobeying warning signs and

barricades (Section 472.022, T.C.); or

Juveniles who commit those same offenses are also eligible. Defendants (driver of vehicle) charged with failing to secure a child in child passenger safety seat system or a safety belt are eligible for a driving safety course, but the defendant must complete a special driving safety class that includes four hours instruction on child restraints.

5. Defendants cannot have completed a driving safety

course/motorcycle operator training course within the 12 months preceding the date of the current offense that is shown on the defendant’s driving record as maintained by the Texas Department of Public Safety.

Exception: If a defendant is charged with not having a child secured in a child passenger safety seat system, and the defendant had not had the special driving safety course that includes the four hours of instruction on child passenger safety seat systems in the last 12 months, the judge may grant a specialized driving safety

2007 page 27


course even if the defendant has had a regular driving safety course (one that did not include the four hours of instruction on child passenger safety seat systems). To determine if a defendant is eligible, the 12-month period of time is calculated from the date of taking the last driving safety course to the date of the current offense. If there are 12 months or more in this period of time, the defendant is eligible; if not, the defendant is not eligible.

6. Defendants cannot be currently taking a driving safety course for a traffic violation in another court.

B. Procedures

1. Mandatory Driving Safety Course/Motorcycle Operator Training Course (Article 45.0511(b), C.C.P.)

Checklist 6-1b Notes

1. Court receives DSC/MOC request by mail; clerk: a. Verifies if request was mailed first class mail

on or before the appearance date on the citation.

b. Verifies request was received not later than 10

days after the due date on the citation for appearance.

c. Clerk keeps the envelope with the postmark

and date stamps “received” for court records.

Amount of time enlarged by “Mail Box Rule.” Article 45.013, C.C.P. Mail Box Rule provides that a document is timely filed with the clerk if it is mailed first class mail on or before the due date and received by the court within 10 days after the due date. “Day” does not include Saturday, Sunday, or legal holidays. The judge has the discretion to grant a driving safety course after appearance date has passed. Article 45.0511(d), C.C.P. Only adults may mail in a request for a driving safety course. Defendants under the age of 17 must appear in open court with a parent or guardian to request a driving safety course. For juvenile appearances see CHECKLIST 21-3.

2. If request is timely filed:

page 28 2007


a. Clerk mails the following to defendant:

• Plea form; • Affidavit form; • Request form for a certified copy of

driver’s license from the Texas Department of Public Safety (DPS) or proof of active military duty, or proof that they are the spouse or dependent child a person on active military duty (driver’s license cannot have been a CDL at time of offense or be a CDL at time of request);

• Request for copy of proof of valid financial responsibility; and

• Instructions to send in court costs and $10 administrative fee.

After a defendant responds to the court’s mailing by returning the plea, affidavit, proof of valid financial responsibility (questions about validity of proof of financial responsibility must be presented to the judge); court costs and the $10 fee, the court sends the defendant instructions about: • Taking an approved Texas

Education Agency approved course or DPS approved motorcycle course;

• Requirement of submitting a certified copy of driving record from the DPS; court may obtain defendant’s driving record from TexasOnline; the defendant must pay the court $12 (fee effective 1/1/2008), which the court must remit to the State; and

• Due date of completion certificate, affidavit, and driving record to be submitted to the court.

3. If request is not timely filed, clerk gives request to

judge to review.

4. If the defendant comes to the clerk’s office and requests a DSC/MOC:

a. Clerk explains to the defendant that: (1) DSC course dismissal only applies to

one violation. (2) Defendant must meet certain

qualifications and criteria.

The judge has the discretion to grant a driving safety course after appearance date has passed. Article 45.0511(d), C.C.P. See CHECKLIST 6-2. TMCEC FORM: REQUEST FOR A DRIVING SAFETY COURSE. Article 45.0511(m), C.C.P.

b. Clerk asks the defendant for proof of the

following: Article 45.0511(b)(4), C.C.P.

2007 page 29


(1) Valid Texas driver’s license or permit,

proof of active military duty or proof that defendant is spouse or dependant child of a person on active military duty, and

(2) Proof of valid financial responsibility. c. Clerk gives the defendant a plea form to enter

a plea of guilty or no contest. d. Clerk asks defendant if he/she has completed a

driving safety course under Article 45.0511, C.C.P., in the 12 months preceding the date of the current offense or if defendant is currently taking a course for another citation (charge filed).

The driver’s license or permit cannot be a commercial driver’s license or permit. Article 45.0511(s), C.C.P. Article 45.0511(b)(6), C.C.P. If there are any issues about whether the insurance is valid or sufficient for the defendant to request a driving safety course, give the insurance information to the judge to make a decision. Clerk cannot ask the defendant, “How do you want to plea?” This is a judicial duty. The clerk may explain the requirements or that the judge requires the defendant to complete the plea form when requesting DSC/MOC. The clerk processes the plea form for the judge to accept. TMCEC FORMS: PLEA FORM OR REQUEST FOR A DRIVING SAFETY COURSE (includes plea).Article 45.0511(b)(2), C.C.P.

e. Clerk gives the defendant required affidavit to

read. (1) Clerk administers oath to defendant

for affidavit. Defendant raises right hand and swears that the information contained in the statement is true and correct.

Note: Clerks and deputy clerks have

authority to administer this oath. Section 602.002, G.C.

TMCEC FORM: AFFIDAVIT FOR DRIVING SAFETY COURSE. Defendant is required to submit an affidavit that he/she has not taken a driving safety course/motorcycle operator training course within the 12 months preceding the date of the current offense and that the defendant is not currently taking a driving safety course that is not yet reflected on his/her driving record. Article 45.0511(c)(3), C.C.P.

Note: Affidavit is not due until the

end of the 90 day period, but most

page 30 2007


courts obtain the affidavit when the defendant appears and files it with the defendant’s file.

(2) After defendant swears to the

affidavit, defendant signs affidavit. (3) Clerk signs jurat (certificate of person

administering oath) and impresses court seal on affidavit.

(4) Clerk files affidavit with defendant’s

case.

TMCEC FORM: AFFIDAVIT FOR DRIVING SAFETY COURSE. Clerks have authority to administer any oath. Section 602.002, G.C.

f. Clerk gives the defendant information about

requesting a certified copy of the defendant’s driving record from the Texas Department of Public Safety.

Note: The judge may require the defendant to

pay a $12 fee (fee effective 1/1/2008) and upon payment of the fee, the court may use the TexasOnline to request the certified copy of the defendant’s driving record. The clerk is required to remit the fee to the State Comptroller without deduction or proration quarterly with the other court costs. Article 45.0511(c-1), C.C.P.

Defendant must submit a certified copy of his/her driver’s license record along with his or her certificate of completion of the driving safety course/motorcycle operator training course. The driver’s license record must show that the defendant was eligible. Article 45.0511(c)(2), C.C.P.

g. If defendant’s request is not timely filed but

defendant was not advised of right to a driving safety course, defendant still has right to request a driving safety course or motorcycle operator training course.

Article 45.0511(r), C.C.P.

5. Court cost due upon approval of DSC request:

a. Clerk collects all state and local court costs. b. The clerk collects an administrative fee in an

amount of not more than $10. c. Court costs and fee are nonrefundable.

Section 133.101, L.G.C. The $10 administrative fee is optional and must be required by the judge before the clerk requests the fee from defendants. It is a local fee and is deposited into the city’s general revenue fund. Article 45.0511(f)(1), C.C.P.

2007 page 31


6. Clerk provides the defendant with the date that all evidence is due in the court.

7. Clerk prepares judgment for judge to sign.

8. Judge signs judgment deferring imposition of the judgment ordering the defendant to take a driving safety course.

9. If the court has an automated docket (software), the clerk notes in docket that the defendant is taking DSC or MOC and the due date of required evidence.

This date should be 90 days from date that judge signs judgment deferring imposition of judgment granting the driving safety course. A driving safety course/motorcycle operator training course is granted when the judge enters judgment on the defendant’s plea of no contest or guilty and defers imposition of the judgment granting the defendant 90 day to complete the course. Article 45.0511(c), C.C.P. TMCEC FORM: JUDGMENT – DRIVING SAFETY COURSE/MOTORCYCLE OPERATOR TRAINING SAFETY PROGRAM GRANTED.

10. During the 90 day period, the defendant is required to: a. Successfully complete a driving safety course

approved by the Texas Education Agency or a course under the motorcycle operator training and safety program approved by the designated state agency under Chapter 662, T.C. (which is DPS);

b. Present the court a certificate of completion of

the driving safety course or verification of completion of the motorcycle operator training course;

c. If the violation was a child restraint violation,

the defendant must present to the court a special driving safety course certificate which shows that it included instruction on child restraints;

d. Present to the court with the defendant’s

certified copy of his/her driving record from DPS showing that the defendant has not completed an approved driving safety course or motorcycle operator training course in the 12 months preceding the date of the current citation; and

Article 45.0511(b), C.C.P. Article 45.0511(c)(1), C.C.P. Article 45.0511(c)(2), C.C.P. If the defendant is active military or spouse or dependent child of a person active military duty, the defendant may or may not have a Texas driving record and the required affidavit will suffice.

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e. Present to the court the affidavit that

defendant was not taking a driving safety course at time of request for current offense and has not taken a driving safety course not yet reflected on defendant’s driving record.

Article 45.0511(c)(3), C.C.P.

11. Defendant presents all required evidence on or before the 90 day period.

The affidavit may already be on file with the court. TMCEC FORM: AFFIDAVIT FOR DRIVING SAFETY COURSE.

a. Clerk prepares final dismissal judgment for

judge’s signature. b. Clerk gives judgment and defendant’s

evidence to judge to dismiss the charge. c. Judge reviews evidence and signs judgment. d. Clerk notes dismissal in docket. e. Clerk reports the date the DSC/MOC was

completed to DPS.

Section 545.413(i), T.C. Article 45.0511(l), C.C.P. This judgment removes the prior judgment and dismisses the case. TMCEC FORM: JUDGMENT: DRIVING SAFETY COURSE/MOTORCYCLE OPERATOR TRAINING SAFETY PROGRAM GRANTED (also includes final judgment). Article 45.0511(l)(2), C.C.P. For reporting to DPS, see CHECKLIST 23-4.

12. Defendant presents evidence, but certified copy of

driving records shows that defendant was not eligible to take driving safety course/motorcycle operator training course.

a. Clerk prepares final judgment of conviction

for judge’s signature. (Clerk attaches all the evidence that the defendant has submitted to the court.)

b. Judge reviews evidence and determines that

defendant was not eligible for DSC/MOC. c. Judge signs judgment of conviction. d. Clerk enters judgment of conviction in docket.

When the defendant’s driving record shows that the defendant was not eligible to take the driving safety course/motorcycle operator training course, the clerk sets the defendant for a hearing before the judge. TMCEC FORM: JUDGMENT: DRIVING SAFETY COURSE/MOTORCYCLE OPERATOR TRAINING SAFETY PROGRAM GRANTED (also includes final judgment). If the court does not set a hearing or if the defendant does not appear at a hearing, the clerk should notify the defendant of the conviction. If the

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e. Defendant pays fine. f. Defendant appeals. g. Defendant defaults on payment of fine.

conviction is not appealed, it is reported to DPS. See CHECKLIST 22-4. CHECKLIST 12. CHECKLIST 14. CHECKLISTS 12-2 and 19.

13. Defendant fails to present required evidence to the court.

a. Court required to set the defendant for a show

cause hearing. b. Clerk shall notify the defendant in writing of

the hearing: (1) Mailed to the address on file with the

court; (2) Defendant is required to appear at a

particular place and time to show good cause why the defendant did not timely comply.

Article 45.0511(i), C.C.P. Notice is sent regular mail. Article 45.0511(i), C.C.P. TMCEC FORM: DRIVING SAFETY – NOTICE TO DEFENDANT TO SHOW CAUSE.

c. If the defendant does not appear at the show cause hearing, the clerk prepares the final judgment of conviction for the judge’s signature.

d. If the defendant appears and does not show

good cause for non-compliance, the judge directs the clerk to prepare the final judgment of conviction.

TMCEC FORM: JUDGMENT: DRIVING SAFETY COURSE/MOTORCYCLE OPERATOR TRAINING SAFETY PROGRAM GRANTED (also has separate final judgment). This judgment imposes the fine. If defendant is younger than age 17 when the offense occurred, court sets defendant for a contempt hearing under Article 45.050, C.C.P. See Chapter 20 on Juveniles. (Note: The show cause hearing and contempt hearing may be conducted at the same time.)

e. Judge signs judgment. (1) Defendant can pay fine. (2) Defendant may appeal.

After entry of judgment, the defendant may appeal. If there is no appeal, the court may proceed to enforce the judgment.

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f. Clerk enters judgment in docket. g. If the defendant appears and shows good

cause for non-compliance, the judge may allow an extension of time for the defendant to present proof of compliance.

h. Court reports to Texas Department of Public

Safety. (1) If case dismissed, clerk reports date

defendant completed driving safety course/motorcycle operator training course.

(2) If defendant fails to complete

DSC/MOC and defendant does not appeal conviction, clerk reports conviction to the Texas Department of Public Safety.

If no appeal, clerk reports conviction to the Texas Department of Public Safety. CHECKLIST 23-4. CHECKLIST 23-4.

2. Discretionary Driving Safety Course/Motorcycle Operator Training Course Checklist 6-2 Notes

1. Defendant fails to make a timely request for a driving safety/motorcycle operator training course or has had a course in the preceding 12 months.

2. Clerk sets defendant to appear before judge.

3. Judge takes a plea and grants discretionary DSC/MOC.

a. Judge enters (signs) judgment but defers

imposition of the judgment for 90 days. b. The judge may assess a non-refundable

special expense fee not to exceed the maximum possible fine.

c. No driving record is required. d. Clerk collects court costs and administrative

fee.

Article 45.0511(d), C.C.P. The judge may grant DSC/MOC if the defendant has taken a course in the 12 months preceding the offense date, or if the defendant failed to make a timely request. TMCEC FORM: PLEA FORM. Clerk prepares judgment for judge. TMCEC FORM: JUDGMENT: DRIVING SAFETY COURSE/MOTORCYCLE OPERATOR TRAINING COURSE GRANTED. Article 45.0511(f)(2), C.C.P. Section 133.101, L.G.C.

2007 page 35


e. Clerk gives information to the defendant about due date and about taking course at a Texas Education Agency approved course.

4. Clerk enters in docket: DSC/MOC given under

discretionary provision, court costs and fee paid, and due date of evidence.

5. If defendant timely presents evidence of course

completion, clerk prepares dismissal judgment.

6. Judge signs judgment.

The fee can be up to the maximum amount of the possible fine. Clerk provides receipt to defendant. TMCEC FORM: JUDGMENT: DRIVING SAFETY COURSE/MOTORCYCLE OPERATOR TRAINING COURSE GRANTED (also contains final judgment).

7. Clerk enters judgment in docket and reports dismissal

to the Texas Department of Public Safety.

8. If defendant fails to submit evidence timely: a. Court required to set defendant for show cause

hearing.

CHECKLIST 23-4. TMCEC FORM: DRIVING SAFETY: NOTICE TO DEFENDANT TO SHOW CAUSE.

b. Clerk shall notify the defendant in writing of the hearing:

(1) Mail to the address on file with the

court; (2) Defendant is required to appear at the

court to show good cause why he/she did not timely comply.

This notice is mailed regular mail.

c. If the defendant does not appear at the show cause hearing, the clerk prepares the judgment of conviction for judge’s signature.

d. If the defendant appears and does not show

good cause for non-compliance, the judge directs the clerk to prepare the judgment of conviction.

e. Clerk prepares judgment of conviction. f. Judge signs judgment. g. Clerk enters final judgment in docket.

TMCEC FORM: JUDGMENT: DRIVING SAFETY COURSE/MOTORCYCLE OPERATOR TRAINING SAFETY PROGRAM (Also contains final judgment.). If no appeal, clerk reports conviction to the Texas Department of Public

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h. Defendant pays fine. i. Defendant defaults in payment of fine. j. Defendant appeals.

Safety. See CHECKLIST 23-4. CHECKLIST 12. CHECKLISTS 12 and 19. CHECKLIST 14.

2007 page 37



page 38 2007


CHAPTER 7 DEFERRED DISPOSITION Deferred disposition is an alternative sentencing option that the judge has the discretion to grant. Even if the prosecutor makes deferred disposition part of a plea bargain, the judge must decide whether to grant and order. The authority is limited in certain instances. See the following checklist.

A. Terms and Conditions Checklist 7-1 Notes

1. Defendant must plead guilty or no contest or be found guilty.

2. Defendant must pay court costs. The judge may

require the court costs paid by time payments, by performing community service, or by a combination of both time payment and community service before the end of the deferral period.

3. Defendant cannot have a commercial driver’s license

or have had one when the offense occurred.

4. Defendant’s offense cannot have occurred in a construction or maintenance work zone when workers were present.

5. If the defendant is younger than age 25 and charged

with a moving traffic violation, the judge must, as a term of the deferred disposition, require the defendant to take a driving safety course.

6. If the defendant has a provisional driver’s license

(younger than age 18) and the defendant is charged with a moving traffic violation, the judge must, as a term of the deferred disposition, require the defendant to retake the driving test at DPS.

7. If the defendant is a minor charged with an Alcoholic

Beverage Code offense, the judge must, as a term of deferred disposition, require the defendant to take an alcohol awareness program.

Article 45.051(a), C.C.P. Article 45.051(a), C.C.P.; Section 133.101, L.G.C. Article 45.051(f), C.C.P. (Two versions of subsection (f)) Article 45.051(f), C.C.P. Article 45.051(b-1)(2), C.C.P. A list of moving violations is found in Title 37, Chapter 15, Rule 15.89(b) of the Texas Administrative Code. Article 45.051(b-1)(3), C.C.P. Section 106.115(a), A.B.C.

8. If the defendant is a minor charged with an Alcoholic Beverage Code offense, except the offense of driving under the influence (DUI), the judge must, as a term of deferred disposition, require the defendant to perform community service.

Section 106.071(d), A.B.C. The defendant is entitled to perform the community service in the county in which the court is located or in the county in which the defendant resides but only if the entity or governmental

2007 page 39


a. First time offender—eight (8) to 12 hours. b. Second time offender (filed as a second time

offense)—20 to 40 hours.

organization agrees to supervise the defendant. Article 45.049(g), C.C.P.

9. Optional conditions: • Post a bond to secure payment of the fine; • Pay restitution to the victim of the offense in an

amount not to exceed the fine assessed; • Submit to professional counseling; • Submit to diagnostic testing for alcohol or a

controlled substance or drug; • Submit to a psychosocial assessment; • Participate in an alcohol or drug abuse treatment

or education program; • Pay the costs of any diagnostic testing,

psychosocial assessment, or participation in a treatment or education program either directly or through the court as court costs;

• Complete a driving safety course approved by the Texas Education agency (only optional if defendant is age 25 or older);

• Present to the court satisfactory evidence that the defendant has complied with each requirement imposed by the judge; or

• Comply with any other reasonable condition.

If a defendant is charged with a traffic offense and the judge requires community service under the optional condition “any other reasonable condition,” the court may require the community service be performed in the county in which the court is located or in the county in which the defendant resides but only if the entity or governmental organization agrees to supervise the defendant. Article 45.049(g), C.C.P.

B. Procedures Checklist 7-2 Notes

1. The clerk sets the defendant for a hearing before the judge.

2. The citation is sufficient to bring the case before the

Article 45.051, C.C.P. Clerks do not have authority to grant deferred disposition. This is a judicial duty. Some clerks take applications

judge. from defendants (adults only not

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3. When the judge decides to grant deferred disposition:

a. Defendant enters a plea (guilty or no contest). (Note: Defendants being found guilty after

trial may also be granted deferred disposition by the judge.)

b. Defendant pays court costs (all local and state

costs at time deferred granted, or the judge requires court costs paid by time payment or requires court costs paid by community service).

(1) Clerk collects payment of court costs

if the judge orders them paid immediately.

(2) Clerk receipts payment and gives

defendant a copy of receipt. c. Clerk prepares deferred disposition order

according to judge’s instructions. d. Judge signs deferral order which may set the

following conditions: (1) The length of deferred period (may

not exceed 180 days, Article 45.051(a), C.C.P.);

(2) Bond to secure payment of fine (cash

bond); (3) Order of installment agreement for

court costs or order for community service to discharge court costs;

children or minors charged with Alcoholic Beverage Code or tobacco offenses) and present the applications to the judge to make the decision whether to grant deferred. After the judge grants and orders deferred, the clerk notifies the defendant of the order. TMCEC FORM: PLEA FORM. Section 133.101, L.G.C. If a defendant is unable to pay part of the court costs or all the court costs, the judge may allow the defendant to enter into an installment agreement to pay the costs during the deferral period, or the judge may require an eligible defendant to discharge all or part of the court costs by performing community service, or to pay part of the court costs in installments and discharge the rest by performing community service. TMCEC FORMS: DEFERRED PROCEEDINGS – ORDER DEFERRING FURTHER PROCEEDINGS; DEFERRED DISPOSITION: DEF. NOT UNDER AGE 25—MOVING VIOLATION OFFENSE; or DEFERRED DISPOSITION: DEF. UNDER AGE 25—MOVING VIOLATION OFFENSE.

2007 page 41


(4) Pay restitution to the victim of the offense in an amount not to exceed the fine assessed;

(5) Submit to professional counseling; (6) Submit to diagnostic testing for

alcohol or a controlled substance or drug;

(7) Participate in an alcohol or drug abuse

treatment or education program; (8) Pay the costs of any diagnostic

testing, psychosocial assessment, or participation in a treatment or education program either directly or through the court as court costs;

(9) Complete a driving safety course

approved by the Texas Education Agency;

(10) Present to the court satisfactory

evidence that the defendant has complied with each requirement imposed by the judge; and

(11) Any other reasonable condition.

Many prosecutors use this section to propose conditions for plea bargaining purposes. The judge may also impose any reasonable condition as a term of deferred.

(12) The court may set a special expense fee when granting deferred disposition but may not assess and collect the fee until the defendant complies with the terms of the deferral and the judge dismisses the case. Then the judge may order the special expense fee paid in the judgment of dismissal.

The special expense fee is optional and is assessed when the defendant completes the terms of the deferral and after the judge dismisses the complaint. The fee cannot exceed the amount of the fine that was assessed (but not imposed) at the beginning when deferred was granted.

e. If the judge requires a bond as a term of the Maintain a record of receipt. Since

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deferral, the clerk collects the payment and prepares a receipt. (This is a cash bond only to secure payment of the fine and is in the amount of the fine that the judge set but did not impose when granting deferred disposition.)

4. If the offense is an Alcoholic Beverage Code offense,

the court is required to report to DPS that the defendant was granted deferred disposition.

this is a bond, it must be held in trust until the end of the deferral period. It does not have to be held in a separate bank account, but it must be held in a separate fund in the city’s general revenue account and cannot be used. Report using DPS form DIC-15. The deferred order is reported when deferred disposition is granted.

5. If the offense is a moving traffic violation and the defendant is under age 25, the court must require a driving safety course as a term of the deferred.

TMCEC FORM: DEFERRED DISPOSITION: DEF. UNDER AGE 25—MOVING VIOLATION OFFENSE.

6. If the offense is a moving traffic violation and the defendant has a provisional driver’s license (under the age of 18), the court must require the defendant to attend a driving safety course and to retake the driving test with DPS as terms of deferred.

TMCEC FORM: DEFERRED DISPOSITION: DEF. UNDER AGE 25—MOVING VIOLATION OFFENSE.

7. Defendant complies with all the conditions of the deferred and timely presents evidence of completion to the court:

a. Clerk prepares judgment and gives evidence

of compliance to judge for dismissal of the charge.

b. If judge wishes to assess a special expense fee,

the judge, after dismissing the case, orders a special expense fee to be paid.

TMCEC FORMS: JUDGMENT – FINAL DISPOSITION OF DEFERRED DISPOSITION. Special expense fee cannot exceed the amount of fine assessed when deferred was granted. Judge may order special expense fee paid only after case is dismissed. The clerk cannot collect the special expense fee until the judge orders the special expense fee to be paid by the defendant.

c. Report to DPS. (1) Traffic violation dismissed under

deferred dispositions are not reported to DPS.

(2) Report traffic conviction if defendant

fails to complete deferred disposition and defendant does not appeal.

CHECKLIST 23-4. Section 543.204, T.C. Section 543.203, T.C.

(3) Alcoholic Beverage Code offense If a defendant under the age of 17

2007 page 43


dismissals are not reported. The court has already reported the order of deferred when deferred disposition was granted.

6. Defendant fails to comply with the terms of the

deferral. a. Clerk sends written notice to the defendant of

a show cause hearing to show cause why the order of deferral should not be revoked.

fails to comply with the terms of deferred, the court must conduct a contempt hearing. See CHECKLISTS 21-5 and 21-10. The defendant fails to submit evidence of compliance of some required term of the deferred including payment of court costs. Court required to set a show cause hearing and to notify defendant of hearing when the defendant fails to comply with the terms of the deferral. When juveniles fail to comply with the terms of deferred disposition, the court is required to conduct a hearing under Article 45.050, C.C.P. See CHECKLIST 21-10. The required show cause hearing under deferred disposition and the contempt hearing under Article 45.050 can be conducted at the same time.

b. The judge grants more time to present

evidence of compliance with the terms of the order of the deferred disposition.

(1) Clerk prepares order granting more

time (order sets specific date for evidence to be presented to the court).

(2) Judge signs order. (3) Clerk gives copy of order to

defendant. (4) Clerk files case in active files. c. The judge does not grant more time to present

evidence and enters a judgment of guilty. (1) Clerk prepares the judgment for

judge’s signature.

At the show cause hearing, the judge has the authority to allow an additional period of time during which the defendant may present evidence of the defendant’s compliance with the requirements. TMCEC FORM: JUDGMENT: FINAL DISPOSITION OF DEFERRED DISPOSITION. CHECKLIST 12.

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(2) Judge enters the judgment of conviction.

(3) Clerk enters the judgment on docket. (4) Defendant can pay or appeal. d. If no appeal, report traffic conviction to the

Texas Department of Public Safety. e. Defendant may appeal.

If the defendant is at least age 25, the judge may reduce the fine. If the defendant is under the age of 25, the court must impose the fine set at the beginning of the deferred. CHECKLIST 2. CHECKLISTS 10 and 14. CHECKLIST 23-4. CHECKLIST 14.

2007 page 45



page 46 2007


CHAPTER 8 TEEN COURT A judge or justice may defer proceedings for not more than 180 days and send a defendant charged with a fine-only misdemeanor who is under the age of 18 or enrolled full time in an accredited secondary school in a program leading toward a high school diploma to a teen court program. Article 45.052, C.C.P. The defendant cannot have completed a teen court program in the two years preceding the date that the alleged current offense occurred.

Checklist 8 Notes

1. Defendant appears in open court (If the defendant is younger than age 17, the defendant must appear with a parent, guardian, or managing conservator.) and pleads guilty or no contest.

2. Defendant requests to attend a teen court program.

Article 45.052(a)(2), C.C.P. Only one offense may be dismissed at a time by completing teen court. TMCEC FORM: TEEN COURT REQUEST/AGREEMENT. If your court does not offer a teen court program, check with other courts in your area.

4. Judge may, but does not have to, require the defendant

to pay two non-refundable $10 fees. If the teen court is near the Texas-Louisiana border, the judge may assess two $20 fees ($20 fees effective 1/1/2008).

5. The judge may waive court costs but does not have to.

6. Clerk prepares court order.

7. Judge signs order granting teen court.

One fee is to help the court defray the cost of administrating the costs of deferring the case for teen court. The other $10 or $20 fee ($20 fees effective 1/1/2008) is to be paid to the teen court program. The teen court program must account to the court for the fee. TMCEC FORM: TEEN COURT ORDER.

8. If the judge imposes the court costs and fees, the clerk collects court costs and fees and issues a receipt.

Judge may waive court costs and fees. Article 45.052(h), C.C.P.

9. Clerk makes copy of order and gives copy to defendant and parent.

11. Clerk notes on the docket that case deferred for teen

court and due date.

12. Clerk notes whether costs and fees were waived or

paid.

13. At the end of the deferral period:

2007 page 47


a. Defendant completes teen court and presents

evidence of completion in open court with parent or guardian.

Article 45.0215, C.C.P. All proceedings are required to be in open court if defendant is under the age of 17.

(1) Clerk prepares judgment. (2) Judge accepts evidence and signs

judgment dismissing case. (3) Clerk notes dismissal in docket. (4) If case is a traffic offense, the clerk

reports the completion of teen court to the Texas Department of Public Safety.

CHECKLIST 2. CHECKLIST 21-4.

b. Defendant fails to complete the teen court program, judge enters (signs) the judgment of guilty and imposes fine and costs.

(1) If the defendant is younger than age

17 when the offense occurred, court sets the defendant for a contempt hearing under Article 45.050, C.C.P.

(2) If the defendant was at least age 17

when the offense occurred, the judge may issue a capias pro fine.

c. Clerk notes judgment in docket. d. Defendant has right to appeal. e. If the offense was a traffic offense, the clerk

reports traffic conviction to DPS if defendant does not appeal.

CHECKLIST 21-10. CHECKLIST 19. CHECKLIST 2. CHECKLIST 14. CHECKLIST 23-4.

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CHAPTER 9 TRIALS

A. Motions for Continuance Motions for continuance are used by the prosecutor or defendant to continue the trial or appearance date to a later setting. The clerk keeps a docket scheduling contested cases for bench and jury trials.

Checklist 9-1 Notes

1. Clerk receives a motion for continuance (state or defense):

a. Clerk date stamps motion.

Article 45.017, C.C.P. TMCEC FORMS: MOTION FOR CONTINUANCE and ORDER FOR CONTINUANCE. Articles. 29.01 and 29.02, C.C.P.; See Article 29.011, C.C.P. for religious continuance. Motions for cause must be in writing and set forth the reason for the continuance. Article 29.03, C.C.P.

b. All motions in record courts for continuance

must be in writing to be appealed.

Article 29.08, C.C.P., and Montoya v. State 810 S.W.2d 160 (Tex. Crim. App. 1989).

2. To process request:

a. Clerk provides motion to other party and

judge. b. Clerk sets case for a hearing (pre-trial

hearing), if motion opposed.

Article 29.02, C.C.P., and Taylor v. State 612 S.W.2d 566 (Tex. Crim. App. 1981). TMCEC FORM: PRE-TRIAL AND JURY TRIAL SETTING FORM.

3. The judge has broad discretion in granting or denying

motions for continuance and resetting the case once motion is granted.

a. If motion approved, clerk sets case on next

available court docket and notifies all parties; or

Clerks do not have authority to grant continuances. Clerks may process resets of cases after the judge grants continuances. There is no authority for defendants to request continuances or resets by telephone. CHECKLISTS 9-3 and 9-5.

2007 page 49


b. If motion denied, clerk notifies party requesting continuance; files motion with case; notes on docket that motion was denied; and case remains scheduled on the original date.

B. Subpoenas A subpoena is a court order requiring the appearance of a witness to testify at a trial. Some witnesses are required to bring documents or other evidence with them to the trial. Courts may issue a subpoena for a parent to bring a child witness younger than 18 years of age to a trial. An application for a misdemeanor subpoena in municipal court does not need to be in writing, but the court needs to have sufficient information to issue the subpoena. Both the defense and prosecution have a right to have subpoenas issued for witnesses. A subpoena that requests the witness to bring some type of document or evidence with him/her is called a subpoena duces tecum. The court seal is not required to be impressed on a subpoena. Article 45.012(g), C.C.P.

Checklist 9-2 Notes

1. Clerk receives a request for a subpoena or a subpoena deuces tecum.

a. Clerk verifies that court has sufficient

information to issue the subpoena. b. Clerk prepares the subpoena and subpoena

deuces tecum requested before pre-trial or trial.

c. Clerk issues subpoena.

TMCEC FORMS: SUBPOENA FOR WITNESS; SUBPOENA DEUCES TECUM; MAILED SUBPOENA FOR WITNESS; or MAILED SUBPOENA DUECES TECUM. A subpoena duces tecum is a subpoena that requests a witness to bring some type of document or evidence with him/her. Clerk and deputy clerk has authority to issue subpoena. Article 24.01(d), C.C.P.

2. Clerk gives the subpoena to a peace officer to serve.

Subpoenas may be served by a peace officer or a person who is at least 18 years of age and not a party to the proceedings. Subpoenas are a two-part form—one copy is left with the witness and one is returned to court as proof of service. A peace office may serve a subpoena by certified mail, return receipt requested. Clerks keep the certified

page 50 2007


green card when returned to represent as execution of the subpoena. Exceptions to mailing are: (1) If the applicant for the

subpoena requests in writing that the subpoena not be served by certified mail;

(2) The proceeding for which the witness is being subpoenaed is set to begin within seven business days after the date the subpoena would be mailed. Article 24.04(a)(4), C.C.P.

3. Keep a record of subpoenas issued. a. Clerk makes copies of subpoena(s) for

prosecutor and defense, and files original subpoena(s) with case file.

4. If a witness refuses to obey a subpoena in a

misdemeanor case, the judge may fine the witness up to $100.

a. Clerk processes the conditional judgment. b. Clerk sets a hearing date and sends a notice

(civil citation) to the witness to show cause for not obeying the subpoena.

c. A witness may show cause why he or she

failed to appear at any time before the final judgment is entered.

d. If witness fails to show cause, judgment is

final. e. If the witness appears after a judgment (fine)

is entered, the judge has discretion to reduce the fine or waive it altogether; however, the judge has no discretion to waive cost accruing in the proceeding against witness by reason of the witness’ failure to attend.

Article 24.05, C.C.P. Conditional judgment and all following paperwork are filed with the case in which the witness failed to appear. Article 24.12, C.C.P. Article 24.08 & 24.09 C.C.P. Notice sent certified mail return receipt requested addressee only. Article 24.08, C.C.P. Article 24.08, C.C.P. Article 24.10, C.C.P.

f. Clerk collects costs accrued because of the Cost includes cost of certified mail

2007 page 51


witness’ failure to appear.

5. The defendant or the State may request a writ of attachment for the witness who failed to appear.

a. Clerk prepares a writ of attachment for the

officer to bring the witness on scheduled court date.

b. Clerk gives writ to a peace officer to serve.

and any other cost for getting witness to attend trial. Article 24.12, C.C.P. Article 24.11, C.C.P. Requisites of an “Attachment” TMCEC FORM: WRIT OF ATTACHMENT FOR WITNESS DISOBEYING SUBPOENA.

6. Witness may be required to post bail in an amount set

by the judge. If unable to pay, he or she must be released without security.

a. If the witness is required to post bail, clerk

files bond with file. (If defendant posts cash bond, clerk writes receipt for bond and deposits cash in trust fund.)

b. After the witness makes required appearances,

if a cash bond filed, the bond is refunded to the witness.

Article 24.24, C.C.P.

C. Jury Trials Defendants have a right to a speedy, public trial by an impartial jury. Article 1.05, C.C.P. The proceedings in all courts shall be public. Article 1.24, C.C.P. The right to a jury trial shall be inviolate (may not be violated). Article 1.12, C.C.P.

Checklist 9-3 Notes

1. To prepare for a jury trial, the clerk: a. Reviews the case file and prepares a complaint

for trial, if not already prepared; b. Forwards case papers to prosecutor; c. Coordinates with police department and

prosecutor, police reports, if any; and e. Sends defendant a copy of the complaint.

CHECKLIST 1. If the prosecutor is part-time, the clerk forwards a copy of the case papers instead of the originals. Defendant is entitled to a copy of the complaint 24 hours prior to trial, Article 45.018(b) C.C.P.

If defendant is a juvenile, the court

must summons a parent or guardian

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to appear with the juvenile defendant even if the juvenile has an attorney to represent him/her.

2. Clerk (or judge) subpoena witnesses if requested.

CHECKLIST 9-2.

3. For summoning prospective jurors: a. Clerk prepares a writ of venire (order from

judge to clerk to summon prospective jurors). b. Clerk gives order to judge to sign. c. After judge signs order (usually ordering clerk

to summon prospective jurors), clerk randomly selects jurors.

TMCEC FORM: ORDER TO SUMMON VENIRE. The writ is issued before jurors can be selected. The juror selection is normally made from voter registration, property tax listings, drivers’ licenses, and utility billing account listings. To be eligible to serve on a municipal court jury, including a municipal court of record, a person must be a resident of the municipality for which the court is established. Section 62.501, G.C.

TMCEC FORMS: TRIAL SETTINGS – OFFICIAL MUNICIPAL COURT JUROR SUMMONS & JUROR QUESTIONNAIRE. SELECT PROPER FORM BY POPULATION.

d. Clerk prints and mails juror summons with a

juror questionnaire attached requesting certain personal information from the jurors.

Juror summons should be mailed at least three weeks before the trial date.

4. A person qualified to serve as juror may establish a legal exemption from jury service if the person is: • Over 70 years of age; • Has legal custody of a child younger than 10

years of age and the person’s service on the jury requires leaving the child without adequate supervision;

• Is a student of a public or private secondary school;

Section 62.106, G.C. If a person provides false information in a request for an exemption or excuse from jury service is subject to a contempt action by a fine of not less than $100 or more than $1,000. Section 61.0141, G.C.

• Is a person enrolled and in actual attendance at an institution of higher education;

• Is an officer or an employee of the senate, the

2007 page 53


house of representatives, or any department, commission, board, office, or other agency in the legislative branch of state government;

• Is summoned for service in a county with a population of at least 200,000, unless that county uses a jury plan under Section 62.011 and the period authorized under Section 62.011(b)(5) exceeds two years, and the person has served as a petit juror in the county during the 24-month period preceding the date the person is to appear;

• Is the primary caretaker of a person who is an invalid unable to care for himself or herself;

• Except as provided by Subsection (b) is summoned for service in a county with a population of at least 250,000 and the person has served as a petit juror in the county during the three-year period preceding the date the person is to appear for jury service (does not apply if the jury wheel in the county has been reconstituted after the date the person served as a petit juror); or

• Is a member of the United States military forces serving on active duty and deployed to a location away from the person’s home station and out of the person’s county of residence

5. A person notified for jury service may establish an

exemption from service without appearing in person by filing a signed statement of the ground of his/her exemption with the clerk of the court before the date on which he/she is summoned to appear.

Section 62.107, G.C. and Article 35.04, C.C.P. Clerk should provide a copy to the judge of all exemptions filed.

6. A person who is over 70 years of age may establish a

permanent exemption by: a. Filing with the county tax assessor-collector,

by mail or personal delivery, a signed statement affirming that the person is over 70 years of age and desires a permanent exemption.

b. Filing with the clerk of the court, by mail or

personal delivery, a signed statement affirming that the person is over 70 years of

Section 62.108, G.C. Section 62.107(c), G.C.

age and desires a permanent exemption. c. The clerk must promptly have a copy

delivered to the county tax assessor-collector.

Section 62.107(c), G.C.

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7. A prospective juror who claims a disqualification or

exemption based on the lack of citizenship or lack of residence in the county might make the person ineligible to vote in the county.

Section 62.0142, G.C.

8. A person summoned for jury duty may request a

postponement by contacting the clerk in person, in writing, or by telephone before the date of the trial.

a. When a clerk receives request for

postponement, the clerk must grant request if: (1) the person has not been granted a

postponement in that county during the one-year period preceding the date on which the person is summoned to appear; and

(2) the person and the clerk determine a

substitute date on which the person will appear for jury service that is not later than six months after the date on which the person was originally summoned to appear.

Section 62.0142, G.C. Section 62.0142, G.C.

(3) The clerk of the court may approve a

subsequent postponement only because of an extreme emergency that could not have been anticipated, such as a death in the person’s family, a sudden serious illness suffered by the person, or a natural disaster or national emergency in which the person is personally involved.

Before the clerk may grant the

subsequent postponement, the person and the clerk must determine a substitute date on which the person will appear for jury service that is not later than six months after the date on which the person was to appear after the first postponement.

.

9. If a prospective juror notifies the court that he or she is

hearing impaired, the court must: a. Appoint an interpreter; or

Section 57.001(4), G.C. Clerk should notify judge.

2007 page 55


b. Provide some type of auxiliary equipment to

aid hearing.

10. Clerk must keep a list of prospective jurors who claim an exemption because of lack of residence in the county.

a. Clerk keeps list of names and addresses. b. On third business day of each month, clerk

sends copy of list to voter registrar of county.

11. Preparation for jury trial. a. Copy of juror information forms for

prosecution and defense if mailed in. b. Prepare juror sign-in sheet.

Clerks should have excuse letters available for jurors to take back to work. Hand out after jury service. Some courts prepare juror badges that are numbered.

c. Have available juror information handout.

This handout is required to be read by jurors before jury service.

d. Prepare list of jurors for prosecution and

defense. e. Prepare verdict form.

The handout can be obtained from the State Bar of Texas for free. It is a two-sided sheet with information about the duty of jurors. TMCEC FORMS: VERDICT: JURY PUNISHMENT or VERDICT: COURT PUNISHMENT.

f. Clerk required to post in a designated public

place in the courthouse notice of the criminal docket setting not less than 48 hours before the docket setting if the court does not provide online Internet access to the criminal case records.

Note: Many municipal courts are not located in a courthouse. Hence, they should post the trial docket in the court lobby 48 hours before trials.


g. Payment of jurors not required unless city

requires payment.

Section 61.001(c), G.C. provides that a municipal juror is not entitled to reimbursement under Chapter 61, but the municipality may provide

page 56 2007


reimbursement for expenses to the person in an amount to be determined by the municipality. Some cities, have adopted an ordinance that requires the municipal court to pay its jurors. If the court pays it juror, some cities mail a check to the juror after jury service. Other courts are prepared the day of trial to pay the jurors. After jury service, the clerk has the juror sign a form and turn in a juror badge at the time of payment and the juror is paid in cash. Any payment to a juror must be approved by the city council in the city budget.

D. Day of Jury Trial Checklist 9-4 Notes

1. If clerk had prospective juror bring information sheets with them, make copies for both defense and prosecution. Otherwise have copies available for the prosecutor and defense if prospective jurors mailed information sheet back to court.

Judge gets originals.

2. Have sign-in sheet for jurors. Number on sign-in sheet can correspond with where juror will be seated. Seats can be numbered or jurors can be given a number or numbered badges.

3. As prospective jurors sign-in, have them pick up and

read a juror information handout before the trial starts.

This can be obtained from the State Bar of Texas for free. It provides information about the duty of jurors.

4. Before the jury trial starts, retrieve the juror

information booklets from the prospective jurors.

Jurors who fail to appear for jury duty can be found in contempt and fined up to $100. Article 45.027, C.C.P.

5. Make sure the jurors are properly seated.

6. Challenge to the array (membership of the jury).

The challenge to the array is usually that the person summoned biased persons for the jury membership. Article 35.07, C.C.P.

2007 page 57


a. Either the prosecution or the defense may

challenge the array of the membership of the jury.


b. If the judge sustains the challenge, the prospective jurors are released and the judge orders another person to summon a new jurors.

7. Jury shuffle. a. Some computer software can shuffle juror

names and reselect them for a new seating arrangement.

Only one shuffle may be made, but either side can request it. A shuffle is requested when one side or the other does not like how the jury is seated. Article 35.11, C.C.P.

b. Cut names from a list and put them in a receptacle to be redrawn.

c. Call names and reseat jury.

8. Judge administer oath or directs someone (clerk or bailiff) to administer oath to prospective jurors.

A good way to do this is to have names on labels so that they can be placed on a piece of paper and copied for both defense and prosecution after being redrawn. “You and each of you solemnly swear that you will make true answers to such questions as may be propounded to you by the court, or under its directions, touching your service and qualifications as a juror,

9. After voir dire (questioning of jurors under oath) and

after peremptory strikes (commonly called strikes), the clerk selects the first six jurors that are not struck from the prosecutor or the defense list.

10. The clerk copies these names on a list for the

prosecution, defense and judge.

so help you God.” TMCEC FORM: JURY LIST.

11. After jury selection is over, pick up juror information sheets from both prosecution and defense.

12. The judge shall administer an oath or direct the clerk

or bailiff to administer an oath to the six jurors trying the case.

This information is confidential. Article 35.29, C.C.P. “You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will

13. The trial is conducted.

14. Jury verdict. a. Guilty

a true verdict render according to the law and the evidence, so help you God.”

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(1) Defendant may elect the jury decide the punishment. Election must be made before the trial (Most frequently

TMCEC FORMS: VERDICT: JURY PUNISHMENT or VERDICT: COURT PUNISHMENT.

this is done at pre-trial). (2) If the defendant does not elect the

jury to decide the punishment, the judge decides punishment.

(3) Judge renders and signs judgment. b. Not guilty (1) Judge enters (signs) not guilty

judgment and dismisses. (2) Defendant released from any liability. (3) If the offense was for Section

106.041, A.B.C. – Minor Driving Under the Influence, the court is required to report a finding of not guilty to DPS on the DIC-15 form.

TMCEC FORMS: JUDGMENT AFTER JURY VERDICT or JUDGMENT AFTER JURY VERDICT (JUVENILE). Report acquittal to DPS. See CHECKLIST 23-1. TMCEC FORM: DIC-15.

15. Clerk enters judgment in docket.

16. If guilty judgment, defendant has right to appeal.

17. If the offense is a traffic offense and the defendant

does not appeal, the clerk must report the conviction to the Texas Department of Public Safety.

CHECKLIST 2. CHECKLIST 14. CHECKLIST 23-4.

E. Bench Trial Checklist 9-5 Notes

1. To prepare for a bench trial, the clerk: a. Reviews case file and prepares complaint for

trial if not already prepared;

CHECKLIST 1.

b. Forwards case papers to prosecutor; and c. Coordinates with police department,

prosecutor and police reports, if any; and

If the prosecutor is part-time, the clerk forwards a copy of the case papers instead of the originals.

2007 page 59


d. Sends defendant a copy of the complaint. Defendant is entitled to a copy of the complaint 24 hours prior to trial.

e. Clerk required to post in designated public

place in the courthouse notice of the criminal docket setting not less than 48 hours before the docket setting if the court does not provide online Internet access to the criminal case records.

Article 45.018(b) C.C.P. If defendant is a juvenile, the court must summons a parent or guardian to appear with the juvenile defendant even if the juvenile has an attorney to represent him/her. Article 17.085, C.C.P.

2. Subpoena witnesses if requested.

CHECKLIST 9-2.

3. Day of trial: a. Judge calls the case:

Defendant must waive a jury trial in writing. Article 45.025, C.C.P. This task can be performed by a prosecutor, judge, bailiff, or clerk.

b. Guilty (1) Judge decides punishment.

(2) Judge renders and signs judgment.

Clerk prepares judgment. TMCEC FORM: BENCH JUDGMENT: JURY WAIVED—GUILTY or BENCH JUDGMENT: JURY WAIVED—GUILTY (JUVENILE).

c. Not guilty

(1) Judge enters (signs) not guilty judgment and dismisses the case.

Clerk prepares judgment. TMCEC FORM: BENCH JUDGMENT: JURY WAIVED—NOT GUILTY or BENCH JUDGMENT: JURY WAIVED—NOT GUILTY (JUVENILE).

(2) Defendant released from any liability.

(3) If the offense was for Section

106.041, A.B.C. – Minor Driving Under the Influence, the court is required to report a finding of not guilty to DPS on DIC-15 form.

CHECKLIST 23-1.

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4. Clerk enters judgment in docket.

5. If guilty judgment, defendant has right to appeal.


6. If the defendant does not appeal and the offense is a traffic offense, the clerk reports the conviction to DPS.

CHECKLIST 23-4.

7. If defendant does not appeal, defendant pays:

a. Clerk provides defendant receipt for payment.

b. If unable to pay total fine and costs, see Payment Methods Checklist.

CHECKLIST 12

F. New Trial Checklist 9-6 Notes

1. Defendant makes a motion for a new trial (in a municipal court of record, the motion must be in writing. Section 30.00014(c), G.C.).

a. Clerk gives motion (or motions) to the judge

as soon as they are filed.

In a non-record municipal court, after a plea of guilty or nolo contendere or a finding of guilty after a trial, a defendant has one day to make a motion for a new trial. Article 45.037, C.C.P. In a municipal court of record, the defendant must have a trial with a record made. The motion for new trial must be made within 10 days after the trial. Section 30.00014(c), G.C.

The motion must set out points of error of which the appellant complains. The motion or amended motion may be amended but not later than the 20th day after the day on

which the original or amended motion

is filed. Section 30.00014(c), G.C. The judge in a municipal court of record may for good cause extend the time for filing or amending, but the extension may not exceed 90 days from the original filing deadline.

b. Judge makes decision on motion.

In a non-record municipal court, the judge has 10 days to make a decision

2007 page 61


(1) Judge grants motion: (a) Clerk notifies defendant and

defendant’s attorney, if any. (b) Court resets case for new trial

and sends notice to defendant and attorney, if any.

(2) Judge does not grant motion: (a) Clerk notifies defendant and

defendant’s attorney, if any. (b) Clerk notified defendant that

fine and costs due or defendant may appeal.

on the motion. If the motion is not granted before the 11th day after the date that the judgment is entered, the motion is considered denied. In a municipal court of record, if the court does not act on the motion before the expiration of 30 days that is allowed for the court to make a determination on the motion, the original or amended motion is overruled by operation of law. See CHECKLIST 14-2 for Appeals from a municipal court of record.

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CHAPTER 10 SENTENCING Only the judge has the authority to set fines within the parameters established by the penalty clauses of statutes and ordinances. Article 45.041, C.C.P. Clerks process the payments and prepare the judgments for the judge’s signature. After the judgment is signed, the clerk enters the judgment on the docket. Article 45.041, C.C.P. provides for judgments of guilty and gives the judge authority to allow time payments, extensions or require payments immediately. Article 45.041 requires judges to grant for time served in jail. The credit is given at a rate of not less than $50 for each period of time served. “Period of time” is defined as not less than eight (8) hours or more than 24 hours. Article 45.048, C.C.P.

Checklist 10 Notes

1. The defendant may enter a plea of guilty or nolo contendere or there might be a finding of guilty after a trial.

The judge should be familiar with the penalty and other sanctions, if any, for each particular offense. See Article 45.047, C.C.P., for special sanctions allowed in juvenile cases.

2. If deferred disposition is granted, go to Deferred

Disposition CHECKLIST 7 and skip the rest of this list.

Article 45.051, C.C.P. CHECKLIST 7.

3. Judgment a. Clerk prepares judgment paperwork for judge’s

signature.

TMCEC FORMS: CHAPTER ON JUDGMENTS.

b. The judge may order the fine and costs paid: (1) Immediately. Clerk collects fine and

costs and provides a receipt to the defendant.

(2) At a later date. Clerk processes case

for extension order. (3) To be paid at designated intervals.

Clerk processes installment order. c. If fine and costs are not paid before the 31st day

after judgment, clerk adds a one time $25 time payment fee per charge.

Article 45.041(b), C.C.P. See Indigence Checklist for persons unable to pay fine and costs. CHECKLIST 11. For more information on extensions, see CHECKLIST 12. Section 133.103, L.G.C. For more information on payment plans, see CHECKLIST 12.

4. If the defendant has been jailed on the charge, the court must calculate jail credit.

Articles 42.03, 45.041(c) and 45.048, C.C.P.

2007 page 63


a. Clerk provides judge with paperwork from jail.

b. After the judge calculates the credit for the

period of time (not less than $50 for the period of time; for offenses committed before January 1, 2004, the credit amount is $100 per period of time served.), clerk notes credit in the docket.

Article 45.048(a)(2), C.C.P. The period of time can be no less than eight (8) hours or more than 24 hours. Article 45.048(b), C.C.P.

Non-cash credit is applied to the fine first and then to all the court cost proportionally last. Payment of cash is applied to all the court costs first proportionally and the fine last.

5. Judge may order restitution to the victim. a. Judge orders restitution in the judgment. b. The judgment may order the payments to be

made within a specified period of time or to be made in installments.

c. The court may order that the restitution is

made directly to the victim or through the court.

(1) If restitution is made through the

court, the clerk collects the restitution payments.

(2) The clerk documents the receipt of the

restitution. (3) The clerk sends the restitution to the

victim.

Article 45.041, C.C.P. Judge may order restitution to victims. The amount of restitution is unlimited unless the offense is issuance of bad check, then the amount of restitution is limited to $5,000. If the payments are made in installments, the court is required to collect $12 court costs. The court keeps $6 and sends $6 to the state for the Compensation of Victims of Crime Fund. Article 42.037(g), C.C.P. If restitution is made on the 31st day and after the judgment, the defendant is required to pay the $25 time payment fee.

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CHAPTER 11 INDIGENCE Indigent “means an individual who earns not more than 125 percent of the income standard established by applicable federal poverty guidelines. (Section 133.002, Local Government Code) It is unclear which federal poverty guidelines municipal courts should use. The TMCEC application for time payment, extensions or community service ask that the defendant note any federal programs that he or she is eligible for and is receiving assistance. The court should consider this information in combination with the defendant’s ability to pay a fine and costs.

Checklist 11 Notes

1. A defendant raises the question of indigence when he/she has a problem with paying fine/costs, appealing the case or posting bail.

a. Clerk provides the defendant a financial

application form. b. Defendant completes the financial information

paperwork.

2. Judge administers oath to defendant and conducts hearing.

The policy of “pay or lay” was found to violate the 14th Amendment of the U.S. Constitution. Tate v. Short, 401 U.S. 395 (1971). TMCEC FORM: APPLICATION FOR TIME PAYMENT, EXTENSION, OR COMMUNITY SERVICE.

3. Clerk enters on the docket the judge’s decision from hearing.

4. Clerk attaches all documentation with ruling and

places with court case file.

5. If the judge determines that the defendant is indigent or unable to pay the fine and costs,

a. The judge can order the defendant discharge

the fine and costs by performing community service.

(1) Clerk coordinates community service. (2) Clerk files case in active files until

community service completed. b. If defendant decides to appeal case, the judge

may grant personal bond for appeal bond.

6. Judge may waive court costs and fine.

Article 45.049, C.C.P. TMCEC FORMS: COMMUNITY SERVICE ORDER and COMMUNITY SERVICE TIME SHEET. CHECKLIST 14. TMCEC FORM: PERSONAL APPEAL BOND. Article 45.0491, C.C.P.

2007 page 65


a. Clerk notes judge’s finding of indigent status

and waiver of fine and court costs on court docket.

b. Clerk files documentation of indigent

determination and waiver of fine and court costs with case file.

Judge must determine that defendant defaulted in payment of fine, is indigent, and performing community service would be an undue hardship.

c. Clerk reports conviction to the Texas

Department of Public Safety if required.

TMCEC FORM: WAIVER OF PAYMENT OF FINES AND COST FOR INDIGENT DEFENDANTS. CHECKLIST 23.

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CHAPTER 12 METHOD OF PAYMENTS

A. Time Payments Judges have the authority to grant extensions and time payments or require a defendant to discharge a fine and costs by performing community service if the defendant is unable to pay the fine and costs immediately. Articles 45.041 and 45.049, C.C.P.

Checklist 12-1 Notes

1. Defendant makes court appearance before the judge. a. Defendant pays fine and costs. b. Clerk provides defendant with receipt. c. Clerk prepares judgment for judge’s signature d. Judge signs judgment. e. Clerk enters judgment on docket. f. Clerk archives case.

2. Payment made without appearance in open court. a. Payment (fine and costs) delivered by

defendant or defendant’s attorney to court offices (clerk’s office).

(1) Clerk identifies defendant (usually by

driver’s license or if no license by a sworn affidavit; defendant’s attorney required to have a letter of representation on file with the court).

(2) Clerk collects payment and writes

receipt, providing defendant copy of receipt.

(3) If payment amount is correct, clerk

prepares judgment for judge’s signature.

CHECKLIST 2. Payment of a fine constitutes a plea of no contest and a written waiver of jury trial. Article 27.14(c), C.C.P. Article 27.14(b), C.C.P. Payment amount made from judge’s suggested minimum fine schedule either printed on the citation or handed out by a peace officer. Judge may require clerk have defendant complete plea form. Only a defendant or a defendant’s attorney can deliver a plea to the court. A friend or family member has no authority to deliver a plea to the court. Delivering a plea to the court is representing the defendant and only the defendant or an attorney hired by the defendant has authority to do that. TMCEC FORMS: CHAPTER ON JUDGMENTS.

2007 page 67


b. Judge accepts payment and signs judgment. (1) Clerk enters judgment and payment

on docket. (2) Clerk files judgment in case file. (3) Report conviction to the Texas



(4) Clerk archives case files.

3. Payment made without appearance in open court. a. Defendant delivers plea to court offices.

Defendant does not have sufficient funds to pay fine and costs.

b. Clerk identifies defendant (usually by driver’s

license or if no license by a sworn affidavit; defendant’s attorney required to have a letter of representation on file with the court).

c. Clerk has defendant sign paperwork required

by judge. d. If defendant can make a partial payment under

the judge’s present payment plan, clerk writes receipt for partial payment.

e. Clerk gives defendant copy of receipt and

copy of payment order (not yet signed by judge).

Clerks do not have authority to grant extensions or time payment plans. Clerks may, however, process judicial orders. This means that the judge can set certain parameters for collecting time payments and extensions and clerks may collect the money and process the paperwork. Only a defendant or a defendant’s attorney can deliver a plea to the court. A friend or family member has no authority to deliver a plea to the court. Delivering a plea to the court is representing the defendant and only the defendant or an attorney hired by the defendant has authority to do that.

(1) Clerk gives plea, payment order, and a prepared judgment form to the judge.

(2) Judge reviews paperwork and signs

judgment. (3) Clerk enters judgment in docket. (4) Clerk retains file in active files until

final payment made.

TMCEC FORMS: CHAPTER ON JUDGMENTS. CHECKLIST 2.

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(5) If conviction required to be reported to Department of Public Safety, clerk reports conviction.

f. If defendant unable to meet preset payment

plan, clerk sets defendant for indigent hearing before judge and gives time payment application to defendant.

CHECKLIST 23. TMCEC FORM: APPLICATION FOR TIME PAYMENT, EXTENSION, OR COMMUNITY SERVICE. See CHECKLIST 11 for indigence.

4. Defendant delivers plea of guilty or nolo contendere to court offices.

a. Clerk identifies defendant (usually by driver’s license or if no license by a sworn affidavit; defendant’s attorney required to have a letter of representation on file with the court).

b. Clerk receives plea paperwork. c. Defendant has no money to pay fine. d. Clerk sets defendant for an indigent hearing

before the judge. e. Clerk gives defendant application to apply for

community service. f. Clerk prepares judgment for judge’s signature. g. After hearing, clerk enters judgment on

docket, coordinates community service and reports the conviction to the Texas Department of Public Safety if required.

h. Clerk files case in active files.

Only a defendant or a defendant’s attorney can deliver a plea to the court. A friend or family member has no authority to deliver a plea to the court. Delivering a plea to the court is representing the defendant and only the defendant or an attorney hired by the defendant has authority to do that. TMCEC FORM: APPLICATION FOR TIME PAYMENT, EXTENSION OR COMMUNITY SERVICE. CHECKLIST 23.

5. Defendant mails payment to court. a. Clerk opens mail and stamps restrictive

endorsement on the check or money order. b. Clerk stamps date received on envelope and

other items in envelope and files with case file.

c. Clerk notes payment on case file and prepares

receipt.

Article 27.14(b), C.C.P. Payment of a fine constitutes a plea of no contest plea and a written waiver of jury trial.

d. Clerk prepares judgment. TMCEC FORMS: CHAPTER ON

2007 page 69


e. Judge accepts payment and signs judgment. f. Clerk enters judgment on docket. g. Clerk reports conviction to the Texas


JUDGMENTS. CHECKLIST 2. CHECKLIST 23.

h. Clerk archives file.

6. Defendant mails plea of guilty or no contest, with waiver of jury trial to court but no payment.

a. Clerk stamps date received on envelope, plea,

and other items in envelope and files with case file.

b. Clerk prepares judgment. c. Judge accepts plea and signs judgment, setting

the fine and the amount of the appeal bond. d. Clerk sends certified letter return receipt

requested of the amount of fine and appeal bond notifying the defendant that he/she has up to 31 days from receiving the notice to either pay the fine or file an appeal bond with the court.

d. Clerk enters judgment in docket. e. Case filed in active files waiting response

from defendant.

If defendant appeals, see Appeals CHECKLIST 13. If defendant does not appeal and does not pay fine, see Capias pro fine CHECKLIST 19. TMCEC FORMS: CHAPTER ON JUDGMENTS. CHECKLIST 2.

7. The judge can require a defendant who defaults in payment of fine to perform community service or a defendant who is unable to pay fine and costs to perform community service to discharge the fine and costs.

a. After a judge makes determination to have a

defendant discharge a judgment by performing community service, judge signs community service order.

Article 45.049; C.C.P. TMCEC FORM: APPLICATION FOR TIME PAYMENT, EXTENSION , OR COMMUNITY SERVICE. Community service must be performed for a government agency or non-profit organization which must agree to supervise defendant’s work performance and report to judge.

b. Clerk enters judgment in docket. CHECKLIST 2.

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c. Clerk reports conviction to the Texas

Department of Public Safety if required. d. Case filed in active files until community

service completed.

CHECKLIST 23. If defendant fails to complete community service, court may issue a capias pro fine—See CHECKLIST 19. If the defendant is under the age of 17, see CHECKLISTS 21-10 and 10-15.

B. Community Service

A judge may require a defendant who fails to pay a previously assessed fine or costs or who is determined by the court to have insufficient resources or income to pay a fine to discharge all or part of the fine and costs by performing community service. Article 45.049, C.C.P.


1. Defendant unable to pay fine or part of fine or costs.

2. Defendant defaults in payment of fine.

3. Judge determines defendant unable to pay fine. a. Judge may order defendant to perform

community service. b. Judge or clerk prepares community service

order.

Judge has already signed a judgment. Article 45.049, C.C.P. Judge conducts indigent hearing. See CHECKLIST 11. TMCEC FORM: COMMUNITY SERVICE ORDER AND COMMUNITY SERVICE TIME SHEET.

(1) Defendant may perform community

service only for a government entity or a non-profit agency that provides services to the general public that enhances social welfare and the general well-being of the community.

(2) The judge may not order the

defendant to perform more than 16 hours per week of community service unless the judge determines that requiring the defendant to work additional hours does not work a hardship on the defendant or the defendant’s dependants.

The governmental entity or non-profit agency that agrees to accept a community service worker must agree to supervise the defendant in the performance of the defendant’s work and report on the defendant’s work to the judge who ordered the community service.

2007 page 71


(3) Defendant is considered to have

discharged not less than $50 of fines or costs for each eight (8) hours of community service performed.

4. Judge signs order.

5. Clerk gives copy of order and paper for community

service supervisor to sign to defendant.

TMCEC FORM: COMMUNITY SERVICE TIME SHEET.

6. Clerk enters in docket that order issued.

7. Clerk coordinates community service with

governmental entity or non-profit agency.

a. Defendant brings proof of completing

community service to court (clerk’s office). b. Defendant fails to complete community

service.

Fine and costs are discharged.

(1) Clerk can notify defendant of a show cause hearing.

(2) If defendant fails to appear at show

cause hearing, judge may issue capias pro fine unless the defendant is a juvenile. If the defendant is a juvenile, the court must set the juvenile defendant for a contempt hearing under Article 45.050, C.C.P. If the juvenile fails to appear for the contempt hearing, the court may issue a nonsecure custody order.

8. If a defendant is in default on payment of fine and or

costs, is indigent and performing community service would be a hardship, the court may waive payment of the fine and court costs.

a. Judge orders fine and court costs waived.

This notice is sent regular mail. This show cause hearing is not required but it is a good opportunity for a defendant to explain to the judge why he/she failed to perform his or her community service. Juveniles are required to appear for a contempt hearing under Article 45.050, C.C.P. for failure to pay. See CHECKLIST 20-10. CHECKLIST 19. CHECKLIST 21-10. TMCEC FORMS: ORDER TO TAKE INTO NONSECURE CUSTODY: OFFENDER UNDER AGE 17. Article 45.0491, C.C.P.

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b. Clerk prepares order. c. Judge signs order. d. Clerk enters order on docket. e. Clerk archives case.

2007 page 73



page 74 2007


CHAPTER 13 RETURNED CHECKS Some municipal courts accept personal checks for payment of fines and costs. On occasion, these checks may be returned as insufficient funds. The following are guidelines to process returned checks.

Checklist 13 Notes

1. When a check is returned due to insufficient funds or account closed:

a. Fines and fees are due on the defendant’s

case. b. Clerk verifies if case is past the 31st days after

the date of the judgment to determine of the time payment fee is due.

The municipal court does not have the authority to charge or collect a returned check fee. Section 133.103, L.G.C.

c. Clerk sends notice to defendant at the last known address to notify of outstanding amount due and immediate payment required.

This is required, if the prosecutor wants to charge the defendant with issuance of bad check. Section 32.41, P.C. Notice is sent by registered or certified mail.

2. Issue a capias pro fine for the defendant a. Clerk processes paperwork for issuance of a

capias pro fine. b. Judge issues capias pro fine.

Article 45.050, C.C.P. CHECKLIST 19.

3. Clerk notifies prosecutor to determine if prosecutor wants to file the charge of issuance of bad check.

If the prosecutor wants to prosecute the defendant for the offense of issuance of bad check, the clerk prepares the complaint and can swear to the complaint in front of the judge, city secretary or a deputy clerk. See Complaints CHECKLIST 1. After a complaint is filed. The judge with a probable cause affidavit may issue a warrant. See CHECKLIST 16.

4. If city has a contract with DPS to deny renewal of

driver’s license, the court may submit both charges.

5. Clerk gives capias pro fine and warrant of arrest to peace officer, warrant officer or marshal to serve.

2007 page 75



page 76 2007


CHAPTER 14 APPEAL After entry of a guilty judgment, the defendant has the right to appeal the judgment. Article 44.02, C.C.P. A non-record court case when appealed will receive a trial de novo (new trial). The defendant can enter a guilty or no contest plea and appeal; hence, skipping a trial at the non-record municipal court. This is not true for municipal courts of record. Before a case may be appealed, the defendant must have a trial on the record.

A. Appeals from a Municipal Court of Non-Record Checklist 14-1 Notes

1. All defendants have a right to appeal their convictions. Article 44.02, C.C.P.

2. Defendants not required to go to trial.

3. Judgment entered (conviction).

a. Defendant can plead guilty or no contest. b. If defendant fails to complete driving safety

course/motorcycle operator training course; teen court; or the terms of deferred disposition, after the judge enters a final judgment, the defendant has the right to appeal.


4. Defendant can give notice of appeal but is not required

to do so.

Article 45.026(a), C.C.P.

5. If defendant made an appearance in open court.

a. Defendant has 10 days from date of judgment

to file an appeal bond. b. Date stamp bond when received.

Articles 44.16 and 45.026(a), C.C.P. To count the 10 days, do not count the day of judgment. The day after judgment is day one. Count 10 calendar days; if the 10th day falls on a weekend or holiday, the 10th day is the next working day of the court. Section 311.014, G.C.

c. Time expanded if appeal bond mailed. (1) Date stamp envelope and bond when

received. (2) File envelope with case.

Mail Box Rule. Article 45.013, C.C.P. If defendant mails bond on or before due date and the court receives the bond on or before the 10th day after the due date, the bond is properly filed. Day does not include Saturday, Sunday or holiday.

d. If bond not timely filed, clerk must still accept If bond not timely filed, court must

2007 page 77


bond for filing.

6. Defendant delivers plea to court (usually to clerk’s office).

a. Defendant offers plea of guilty or no contest

and notifies court that he/she intends to appeal.

b. Clerk processes plea and waiver of jury trial

paperwork. c. Clerk prepares judgment for judge’s signature. d. Clerk gives judgment form and plea

paperwork to judge to sign. e. Judge accepts plea and waiver of jury trial and

signs judgment and sets amount of appeal bond.

f. Clerk enters judgment in docket. g. Clerk mails a notice to the defendant of the

amount of the fine, costs and appeal bond. h. Defendant has up to 31 days from receiving

the notice from the court to file appeal bond with the court.

still accept and send to appellate court to make decision to send case back to municipal court. Article 45.0426(b), C.C.P. Article 27.14(b), C.C.P. TMCEC FORM: PLEA FORM. TMCEC FORMS: CHAPTER ON JUDGMENTS. Amount of appeal bond cannot be less than two times the amount of the fine and court costs and in no instance can it be for less than $50. Article 45.0425, C.C.P. CHECKLIST 2. Notice must be sent certified mail, return receipt requested.

7. Defendant appeared by mail.

a. Defendant offers plea of guilty or no contest

and notifies court that he/she intends to appeal.

b. Clerk processes plea and waiver of jury trial

paperwork. c. Clerk prepares judgment for judge’s signature.

Article 27.14(b), C.C.P.

d. Clerk gives judgment form and plea

paperwork to judge to sign.

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e. Judge accepts plea and waiver of jury trial and signs judgment and sets amount of appeal bond.

f. Clerk enters judgment in docket. g. Clerk mails a notice to the defendant of the

amount of the fine and appeal bond. h. Defendant has up to 31 days from receiving

the notice from the court to file appeal bond with the court.

Amount of appeal bond cannot be less than two times the amount of the fine and court costs and in no instance can it be for less than $50. Article 45.0425, C.C.P. CHECKLIST 2. Notice must be sent certified mail, return receipt requested.

8. Bond can be cash or surety. Judge can grant a personal bond. Judge cannot require cash.

TMCEC FORMS: CASH APPEAL BOND; SURETY APPEAL BOND; PERSONAL APPEAL BOND.

9. When defendant files bond with the court, the appeal

is perfected (completed). a. All municipal court proceedings in the case

cease. b. If the offense is one that the court is required

to report the conviction to the Texas Department of Public Safety, the court does not report the conviction.

Article 45.0426(a), C.C.P. Date stamp bond when received.

10. Give bond to judge.

11. Make copies of all original papers and bond.

12. If defendant files cash as security for bond: a. Cash should be a cashier’s check or money

order made payable to county. b. Cashier’s check/money order and bond is

attached to appeal.

Article 44.18, C.C.P. The copies are now the municipal court file. For accounting purposes, money is receipted but not deposited.

13. Transcribe (send) all the original papers and bond to the appellate court (usually the county court).

Article 44.18, C.C.P. Send the case to the appellate court even if the judge does not approve the

2007 page 79


bond or the defendant does not timely file the bond. Article 45.0426(b), C.C.P. TMCEC FORMS: CERTIFIED TRANSCRIPTS OF PROCEEDINGS (COURT OF NON-RECORD) or CHECKLIST FOR RECORD ON APPEAL (COURT OF RECORD). Article 44.15, C.C.P. allows the appellate court to permit the defendant to file a new bond if the first bond was filed timely but the bond was defective in form or substance.

Case is tried de novo (new trial) in the county court. If the defendant is convicted, the county court keeps the fine, collects court costs, and reports convictions to the Texas Department of Public Safety if any.

14. If bond filed after time deadline, appellate court

required to send appeal back to municipal court.

Article 45. 0426(b), C.C.P.

15. If appeal sent back to municipal court, judgment of

municipal court is valid and due. a. Clerk date stamps case when received back in

court. b. Notify defendant that fine and costs are due. c. Clerk adds time payment fee to costs if

judgment not paid within 31 days after court receives case back from county court.

d. If defendant refuses or fails to pay, court may

issue a capias pro fine. e. If conviction required to be reported to the

Texas Department of Public Safety, court reports conviction.

A case is sent back on a writ of procedendo which is an order from a higher court sending a case back to a lower court. Notice is sent regular mail. CHECKLIST 12. CHECKLIST 19. CHECKLIST 23.

B. Appeals from a Municipal Court of Record

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1. All defendants have a right to appeal their convictions. Article 44.02, C.C.P.

2. Defendant is required to go to trial and a record of the trial must be made.

3. Judgment is entered (conviction).


4. Defendant must make a motion for a new trial not later

than the 10th day after the date on which the judgment is rendered.

Section 30.00014(c), G.C. In computing a period of days, the court counts calendar days. The first day is excluded and the last day is included. If the last day falls on a weekend or holiday, the period of days is extended to include the next working day of the court.

a. The defendant can file an amended motion

within 20 days after the day the original motion was filed.

b. The court may extend the filing time for filing

the amended motion not to exceed 90 days from the original filing deadline.

c. If the court doesn’t act on the motion before

the expiration of 30 days allowed for the determination of the motion, the original or amended motion is overruled by operation of law.

Section 30.00014(c), G.C. Section 30.00014(c), G.C. Section 30.00014(c), G.C.

5. If the motion for new trial is overruled, the defendant must give notice of appeal not later than the 10th day after the motion for new trial was overruled.

Section 30.00014(d), G.C.

a. The notice of appeal may be given orally in

open court if defendant requested a hearing on the motion for new trial.


2007 page 81


b. If there is no hearing for motion for new trial,

the notice of appeal must be in writing and filed with the court not later than the 10th day after the motion for new trial was overruled. The court may extend the time not to exceed 90 days from the original filing deadline for good cause.


6. The appeal bond must be filed and approved not later

than the 10th day after the motion for new trial was overruled.

Section 30.00015(a), G.C.

7. The bond must be at least double the amount of the

fine and costs but in no instance, can it be less than $100.

Section 30.00015(b), G.C.

8. Defendant must pay a $25 fee for the clerk’s record.

a. Clerk must note payment of $25 fee on the

docket. b. Fee must be refunded if appeal is reversed and

dismissed on appeal.

Section 30.00014(f), G.C. City required to create the fee by ordinance. Sections 30.00014(f) and 30.00017, G.C. The clerk’s record must substantially conform to the provisions relating to the preparation of the clerk’s record in the Texas Rules Appellate Procedure and the Code of Criminal Procedure.

9. Defendant pays for actual transcript of trial

proceedings.

Section 30.00014(g), G.C.

10. Defendant pays for reporter’s record.

Section 30.00019, G.C. Reporter’s record must conform to the provisions relating to the preparation of the reporter’s record in the Texas Rules of Appellate Procedure and the Code of Criminal procedure.

11. Defendant may file a bill of exception with the

transcript to be included with the appeal.

A bill of exception is a formal statement in writing of the objections or exceptions taken by a party during a trial of the court’s decisions, rulings or instructions of the trial judge, stating the objections with facts and circumstances on which it was founded and, in order to attest to its accuracy, signed by the trial judge.

page 82 2007


12. Record on appeal must conform to Texas Rules of

Appellate Procedures and the Code of Criminal Procedure.


13. Not later the 60th day after the date on which the

notice of appeal is given or filed, the parties (defense & prosecution) must file with the municipal clerk: • The reporter’s record; • A written description of material to be included

in the clerk’s record in addition to the required material; and

• Any material to be included in the clerk’s record that is not in the custody of the clerk (This could include videos, pictures, etc.).


14. After the record is complete, the clerk must give the record to the judge to approve.

Section 30.00020(b), G.C.

15. After the judge approves the record, the clerk must

promptly send the record to the appellate court clerk for filing.

The appellate court clerk shall notify the defendant and the prosecution attorney that the record has been filed. Section 30.00020(c), G.C. The appellate court determines each appeal from the errors that are set forth in the appellant’s motion for new trial and that are presented in the clerk’s record and reporter’s record prepared from the proceedings leading to the conviction or appeal.

16. The appellate court clerk mails the decision on the

appeal to municipal judge as soon as the decision is made. The decision can:

• Affirm the judgment of the municipal court; • Reverse and remand the case for a new trial; • Reverse and dismiss the case; or • Reform and correct the judgment.


17. If appellate court reverses and dismisses the case, the municipal court refunds the $25 fee.

18. If appellate court grants a new trial, the new trial is

conducted by the municipal court.

19. If the municipal court judgment is affirmed, the fine

and costs imposed on appeal are collected by the municipal court and paid into the municipal treasury.


2007 page 83



page 84 2007


CHAPTER 15 FAILURE TO APPEAR AND VIOLATION OF PROMISE TO APPEAR Only the prosecutor decides whether to charge a defendant with the offense of failure to appear or violation of promise to appear.

A. Failure to Appear Failure to appear under Section 38.10, P.C., can be filed if the defendant has been in custody and released with or without bail and failed to appear according to the terms of the defendant’s release. The offense of failure to appear has a maximum fine of $500.


1. Defendant fails to make an appearance in court.

2. Clerk may mail optional courtesy notice if it is the court policy.

3. Clerk pulls file on original charge. a. Complaint sworn, signed and sealed with

municipal court seal (if court does not already have a sworn complaint).

b. Sworn complaint for original charge entered

on same docket as citation.

4. Probable cause affidavit prepared for original charge (usually by officer who personally observed offense).

5. Clerk prepares warrant of arrest on original charge for judge’s signature.

a. Judge determines if there is sufficient

probable cause.

Some courts wait an additional 10 working days after a defendant fails to appear to allow for the “Mail Box Rule” under Article 45.013, C.C.P., which gives defendants an additional 10 working days to file documents by mail. CHECKLIST 1. CHECKLIST 2. TMCEC FORM: AFFIDAVIT FOR PROBABLE CAUSE FOR ARREST WARRANT. Note: A person who has information from someone who has personally observed the offense may also swear to a probable cause affidavit. Municipal court clerks and deputy clerks have the authority to administer the oath to someone swearing to a probable cause affidavit. The municipal court seal must be attached. CHECKLIST 16.

2007 page 85


b. If sufficient probable cause, judge signs

warrant. c. Judge places municipal court seal on warrant.

Sometime the seal is printed on the warrant by the court software; sometimes the clerk impresses the seal on the warrant after the judge signs the warrant.

6. Clerk prepares complaint for failure to appear. a. Complaint sworn, signed and sealed with

municipal court seal. b. Complaint filed with court (accepted by

court).

Prosecutor decides whether to charge defendant with failure to appear. TMCEC FORM: FAILURE TO APPEAR COMPLAINT. CHECKLIST 1.

c. Complaint entered on docket.

7. Clerk prepares case file.

8. Clerk generally prepares probable cause affidavit for failure to appear.

a. Clerk swears to probable cause affidavit in

front of another clerk or judge. b. Person administering oath signs jurat and

places municipal court seal on affidavit.

9. Clerk prepares warrant of arrest for failure to appear charge.

10. Clerk gives file to judge.

a. Judge determines if probable cause sufficient. b. If probable cause sufficient, judge signs

warrant and impresses municipal court seal on warrant.

11. Clerk gives warrants to police department, marshal or warrant officer to serve.

CHECKLIST 2. This is a new case separate from the original charge. TMCEC FORM: AFFIDAVIT FOR PROBABLE CAUSE FOR FAILURE TO APPEAR. Jurat is the certificate of the person administering the oath. CHECKLIST 16. Municipal court seal is impressed on the warrant after warrant is signed. Sometimes the software prints the seal on the warrant; sometimes the clerk impresses the seal on the warrant after the judge signs the warrant.

page 86 2007


12. Clerk coordinates with DPS FTA vendor (OminiBase) and private collection vendors if city contracted with them.

B. Violation of Promise to Appear Violation of Promise to Appear under Section 543.009, Transportation Code only applies when the underlying offense is a Subtitle C, Rules of the Road, Transportation Code offense. Subtitle C begins with Chapter 541 and ends with Chapter 600. The defendant must have signed the citation. The maximum fine for violation of promise to appear is $200. Checklist 15-2 Notes

1. Defendant fails to make appearance in court.

2. Clerk may mail optional courtesy notice if court policy.

3. Clerk pulls file on original charge. a. Complaint sworn, signed and sealed with

municipal court seal (if court does not already have a sworn complaint).

b. Complaint for original charge entered on same

docket as citation filed.

4. Probable cause affidavit prepared for original charge (usually by officer who personally observed offense or by someone who has information from someone who personally observed offense).

Violation promise to appear applies if original charge is an offense found in Chapter 541 through 600, Transportation Code. Some courts wait an additional 10 working days after a defendant fails to appear to allow for the “Mail Box Rule” under Article 45.013, C.C.P., which gives defendants an additional 10 working days to file documents by mail. CHECKLIST 1. CHECKLIST 2. TMCEC FORM: AFFIDAVIT OF PROBABLE CAUSE FOR ARREST WARRANT. Note: A person who has information from someone who has personally observed the offense may also swear to a probable cause affidavit. Municipal court clerks and deputy clerks have the authority to administer the oath to someone swearing to a probable cause affidavit. The municipal court seal must be attached.

2007 page 87


5. Clerk prepares warrant of arrest on original charge for

judge’s signature. a. Judge determines if there is sufficient cause.

CHECKLIST 16.

b. If sufficient probable cause, judge signs warrant and impresses municipal court seal on warrant.

Sometimes the seal is printed on the warrant by the software; sometimes the clerk impresses the seal on the warrant after the judge signs the warrant.

6. Clerk prepares complaint for violation of promise to appear.

a. Complaint sworn, signed and impressed with

municipal court seal. b. Complaint filed with court (accepted by

court).

TMCEC FORM: VIOLATION OF PROMISE TO APPEAR COMPLAINT CHECKLIST 1 Anyone with knowledge of the offense may swear to the complaint.

c. Complaint entered on docket.

7. Clerk prepares case file.

8 Clerk usually prepares probable cause affidavit for violation of promise to appear.

a. Clerk swears to probable cause affidavit in

front of another clerk or judge. b. Person administering oath signs jurat and

impresses municipal court seal on affidavit.

9. Clerk prepares warrant of arrest for violation of promise to appear charge.

10. Clerk gives file to judge.

a. Judge determines if probable cause sufficient. b. If probable cause sufficient, judge signs

warrant and impresses municipal court seal on warrant.

CHECKLIST 2. TMCEC FORM: AFFIDAVIT OF PROBABLE CAUSE FOR FTA OR VPA WHEN ORIGINAL CHARGE FILED BY CITATION. Jurat is the certificate of the person administering the oath. CHECKLIST 16. Municipal court seal is impressed on the warrant after the warrant is signed. Sometime the seal is printed on the warrant by the court software; sometimes the clerk impresses the

page 88 2007


11. Clerk gives warrant to police department, marshal or warrant officer to serve.

seal on the warrant after the judge signs the warrant.

12. Clerk coordinates with DPS FTA vendor (OmniBase)

and private collection vendors if city contracted with them.

2007 page 89



page 90 2007


CHAPTER 16 WARRANT OF ARREST Municipal judges have authority to issue warrants of arrest for fine-only misdemeanors filed in their court pursuant to Article 45.014, Code of Criminal Procedure. A “warrant of arrest” is a written order from a judge directed to a peace officer, commanding the officer to take the body of the person accused of an offense, to be dealt with according to law. Warrants are generally issued when a defendant fails to appear in court. Warrants may be issued when a complaint is filed in court and a defendant is not in custody. A summons can be issued any time a warrant of arrest can be issued. A probable cause affidavit is required along with a sworn complaint filed in the court. Judges issue summons and peace officers serve summons. Clerks have no authority to serve a summons. If a defendant fails to appear after a summons has been issued, a warrant of arrest can be issued to enforce the summons. A charge of failure to appear cannot be filed because the defendant has never been in custody.

Checklist 16 Notes

1. Clerk pulls file(s) for warrant preparation.

2. Clerk coordinates with police department probable cause affidavit preparation. A separate probable cause affidavit is required for each warrant.

3. Clerk prepares warrant for judge’s signature. Warrant: a. Issues in the name of “The State of Texas”. b. Is directed to a peace officer or some other

person specifically named in the warrant; c. Commands that the body of the accused be

taken and brought before the judge issuing the warrant at the time and place stated in the warrant;

d. Names the person to be arrested, if known, or

reasonably describes the person as in the complaint;

Arrest warrant must be supported by an affidavit of probable cause. Probable cause affidavit must be sworn before someone with authority to administer oath—clerk, judge, notary public. Section 602.002, G.C. TMCEC FORMS: AFFIDAVIT FOR PROBABLE CAUSE FOR ARREST WARRANT; AFFIDAVIT FOR PROBABLE CAUSE FOR FAILURE TO APPEAR; AFFIDAVIT FOR PROBABLE CAUSE FOR FTA OR VPA WHEN ORIGINAL CHARGE FILED BY CITATION; AFFIDAVIT FOR COMBINED SEARCH AND ARREST WARRANT. TMCEC FORMS: WARRANT OF ARREST – JUDGE.

2007 page 91


e. States that the person is accused of some

offense against the laws of this state, naming the offense;

f. Is signed by the justice or judge, naming the office of the justice or judge in the body of the warrant or in connection with the signature of the justice or judge.

4. Clerk gives judge case file(s) with sworn complaint, probable cause affidavit, and prepared warrant.

a. If judge determines that there is not sufficient

probable cause, the judge does not sign warrant(s).

b. If judge determines that there is sufficient

probable cause, the judge signs warrant(s) and impresses municipal court seal on warrant(s).

5. Clerk coordinates service of the warrant with the police department, marshal and warrant officer.

Clerk notifies officer or complaining witness that judge did not sign warrant because of insufficient probable cause. Sometimes the court software prints the seal on the warrant; sometimes the clerk impresses the seal on the warrant after the judge signs the warrant.

6. If contracted with DPS-FTA program, clerk enters defendant into FTA OmniBase system for DPS failure to appear.

7. Clerk enters defendant into regional database system

for arrest, if contracted.

8. Clerk enters defendant into third party warrant collection company system for collection after 60 days, if contracted.

9. Clerk may mail optional courtesy notice of warrant, if

court policy.

10. Clerk files case(s) in warrant status.

Some police departments do this. If a city is 100,000 population or more, the city must establish a collection plan that meets the Office of Court Administration requirements. Article 103.0033, C.C.P.

11. If warrant served:

a. Clerk is required to have probable cause

affidavit available for public inspection during normal business hours. The public may also purchase a copy.


page 92 2007


b. Defendant may bond out of jail and request: (1) A trial. Clerk sets case for trial.

CHECKLIST 9.

(2) In a non-record municipal court, the defendant may plead guilty or no contest and appeal. Clerk processes appeal.

c. If defendant pays, go to Method of Payment

CHECKLIST 12.

CHECKLIST 14-1. If the municipal court is a court of record, the defendant must go to trial first before being able to appeal. If warrant served or processed by a peace officer and defendant is convicted, clerk required to collect a $50 warrant fee along with other court costs. Article 102.011(a), C.C.P. This is a local cost that is placed in the city’s treasury. If another law enforcement agency executed the warrant, that agency may request the $50 fee. The request must be made within 15 days of the arrest. If the city has adopted an ordinance under Article 45.203, C.C.P., for the collection of a fee not to exceed $25 for service of a warrant for violation of promise to appear or failure to appear, the court must collect the fee upon conviction for these two offenses if the warrants were served. This fee is in addition to the $50 warrant fee and is also a local fee. See DPS Reporting CHECKLIST 23-4 for information on reporting traffic conviction reporting.

12. If prosecutor decides not to prosecute a case that is in warrant, the prosecutor may make a motion to the judge to dismiss the case.

a. Clerk pulls case file and recalls warrant. b. Clerk prepares dismissal judgment. c. Judge signs judgment. d. Clerk enters judgment in docket.


2007 page 93


e. Clerk archives case for destruction. After the case is dismissed, the case may be destroyed after its retention period has passed. See city ordinance for retention period. (Note: Each city is required to have an ordinance approved by the State Library and Archives Commission regarding records retention periods of public records.)

13. Release of records

a. Clerk makes sure a copy of warrant and

affidavit is available for public disclosure. b. If citizen wants to obtain copy of probable

cause affidavit, clerk charges for copy using the city ordinance that provides for costs of copy of public records.

Article 15.26, C.C.P. Chapter 15 applies to a warrant of arrest issued under Article 45.014, C.C.P. Article 45.014(c), C.C.P.

page 94 2007


CHAPTER 17 CAPIAS A “capias” is an order by a judge, directing any peace officer in Texas to arrest the person named in the capias and bring the person before that court immediately, or on a day stated in the order. Article 23.01, Code of Criminal Procedure. It is important for judges and clerks to avoid the common mistake of confusing the capias with the capias pro fine. In municipal court, about the only time that the court issues a capias is when a bond forfeiture is declared. (Article 23.05, C.C.P.)

Checklist 17 Notes

1. A capias shall be issued when a bond forfeiture is declared.

a. If the original charge was initiated by

citation, a complaint should be prepared.

Article 23.05, C.C.P. See Bond Forfeiture CHECKLIST 21. TMCEC FORMS: CAPIAS WARRANT. CHECKLIST 1. The requirements of a capias are that it be issued in the name of “The State of Texas”; names the person whose arrest is ordered or, if the name is unknown, a description; specify which penal offense the person is accused of committing; state the name of the court to which and the time when it is returnable; and contains the date and an official attestation by the issuing authority.

2. Clerk coordinates with police department probable

cause affidavit preparation. A separate probable cause affidavit is required for each warrant.

Capias warrant must be supported by an affidavit of probable cause. Probable cause affidavit must be sworn before someone with authority to administer oath—clerk, judge or notary public. See TMCEC Forms Book for sample probable cause affidavits.

3. Clerk prepares capias for judge’s signature.

The capias issues in the name of “The State of Texas”. It names the person to be arrested, if known, or reasonably describes the person to be arrested; and alleges the commission of some offense against the laws of the State.

2007 page 95


4. Clerk gives judge case file(s) with sworn complaint,

probable cause affidavit, and prepared capias. a. If judge determines that there is not sufficient

probable cause, the judge does not sign capias(s).

b. Clerk contacts the officer who witnessed the

offense and the prosecutor to determine whether to continue to prosecute the case.

c. If judge determines that there is sufficient

probable cause, the judge signs capias(s).

5. After judge signs capias, clerk usually does the following:

a. Coordinates service of the capias with the

police department; b. Enters defendant into FTA OmniBase system

for DPS failure to appear, if city contracted with DPS;

c. Enters defendant into regional database

system for arrest, if contracted; d. Enters defendant into third party warrant

collection company system for collection, if contracted (this may be done only after 60 days have passed since the defendant failed to appear);

e. Mail optional courtesy notice of capias, if

court policy.

6. Clerk files case(s) in capias status.

Sharp v. State, 677 S.W.2d 513 (Tex. Crim. App. 1984). Capias may issue only after a magistrate’s determination of probable cause. A capias is similar to a warrant of arrest. Its purpose is to get the defendant before the municipal court. If prosecutor decides not to prosecute case that is in capias, the prosecutor can make a motion to the judge to dismiss the case. The seal must be impressed on the capias. Sometime the seal is printed on the capias by the court software; sometimes the clerk impresses the seal on the capias after the judge signs the capias.

7. If capias served or processed by a peace officer and

defendant is convicted, the clerk collects a $50 warrant fee in addition to other court costs.

Article 102.011(a), C.C.P. This is a local cost that is placed in the city’s treasury. If another law enforcement agency executed the warrant, that agency may request the $50 fee. The request must be made within 15 days of the arrest.

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8. If prosecutor decides not to prosecute a case that is in

capias, the prosecutor can make a motion to the judge to dismiss the case.

a. After the case is dismissed, clerk archives

case for destruction after its retention period has ended.

Clerk should check city ordinance for record retention requirements.

9. If capias served, a. Clerk is required to have probable cause


b. Defendant may bond out of jail and: (1) Request a trial (Clerk sets case for

trial.); (2) Plead guilty or no contest in a non-

record municipal court and appeal (Clerk processes appeal.); and

(3) Pay the fine and costs. (Clerk

processes the payment.) Go to Method of Payment CHECKLIST 12.

Article 15.26, C.C.P. CHECKLIST 9. CHECKLIST 14-1. If the municipal court is a court of record, the defendant must go to trial first before being able to appeal. See DPS Reporting CHECKLIST 23-4 for information on reporting traffic convictions.

10. Release of records. a. Clerk makes sure copies of capias and

affidavit are provided for public disclosure.


2007 page 97



page 98 2007


CHAPTER 18 SUMMONS A summon is in the same form as a capias except it requires the defendant to appear before the court at a stated time and place. It is a written order of the court which means that it is issued by a judge and not a magistrate. It can be issued anytime that a warrant can be issued. The clerk’s role is to prepare the summons for the judge. Only a peace office may serve a summons.

Checklist 18 Notes

1. Complaint filed with the court. Checklist 1.

2. Prosecutor requests court (judge) issue a summons. Article 23.04, C.C.P., provides that a summons shall be issued only upon the request of a prosecutor.

3. Clerk prepares summons for judge’s signature.

Court should also have a probable cause affidavit when issuing a summons. If a defendant fails to appear, the summons is enforced by a warrant and a probable cause affidavit would be required. TMCEC FORM: SUMMONS.

4. Judge signs summons.

Either the judge or clerk impresses court seal on summons. In some courts, the court software prints the seal on the summons. Summons sets a date and time for the defendant to appear in court.

5. Clerk gives summons to warrant officer, police

department or marshal to serve.

A peace officer can serve a summons by delivering the summons personally, by leaving the summons the summons at the person’s home with someone of suitable age and discretion who lives at the home or by mailing the summons to the defendant’s last known address. Article 23.03(c), C.C.P. Clerks have no authority to serve a summons.

6. After the peace officer returns the summons, showing service of citation to the court, the clerk files return with the defendant’s case.

7. Defendant appears, court proceeds with case.

Defendant can plead not guilty and request a trial. See CHECKLIST 9. Defendant can plead guilty or no

2007 page 99


8. Defendant fails to appear. a. If court does not already have probable cause

affidavit, court contacts police department, animal control, code enforcement, public works, or department/person who filed complaint to file probable cause affidavit.

contest and pay a fine. See CHECKLIST 12. Court can grant defendant deferred disposition. See CHECKLIST 7. Defendant cannot be charged with the offense of failure to appear because an element of the offense of failure to appear requires that the defendant have been in custody, released with or without bail and the defendant failed to appear according to the terms of the release. A defendant who has been served with a summons has never been in custody.

b. Clerk prepares warrant.

CHECKLIST 16.

c. Judge signs warrant.

Municipal court seal is impressed on warrant.

d. Warrant given to warrant officer, police department or marshal to serve.

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CHAPTER 19 CAPIAS PRO FINE When a defendant fails to satisfy a judgment according to its terms, the court may issue a capias pro fine, which must state the amount of the judgment and sentence, command the appropriate peace officer to bring the defendant before the court, or place the defendant in jail until the defendant can be brought before the court. Judges are required to conduct an indigence hearing no later than the business day following the defendant’s arrest on a capias pro fine. Special rules apply to capias pro fines issued for offenses committed by those under age 17. For those rules, see Chapter 19.

Checklist 19 Notes

1. Defendant fails to pay a fine and costs assessed or discharge the judgment in the manner ordered by the court after a judgment has been entered:

a. Clerk pulls file. b. Clerk sends optional courtesy notice if court

policy. c. Clerk reviews case file to ensure signed

judgment in file and reviews receipts, dockets, deposits, etc. to ensure that the defendant is in default and that the court records are accurate regarding defendant’s payments or lack of payments.

d. Clerk prepares affidavit that clerk researched

court records and that records show that there is a judgment against the defendant and that the defendant is in default.

e. Clerk swears to affidavit before person who

has authority to administer an oath—judge, clerk, deputy clerk or notary public.

f. Clerk prepares capias pro fine for judge’s

signature.

Article 45.045, C.C.P. See Methods of Payment CHECKLIST 12. Some judges prefer reviewing the case file themselves. In this instance no affidavit is required. TMCEC FORMS: AFFIDAVIT FOR CAPIAS PRO FINE Section 602.002, G.C. TMCEC FORMS: CAPIAS PRO FINE WARRANT.

2. Clerk gives judge case file(s) with signed judgment, probable cause affidavit, and prepared capias pro fine.

a. If judge determines that there is not sufficient

probable cause, the judge does not sign capias pro fine(s).

(1) Clerk researches the case further to

verify defendant is in default.

In this instance, the clerk would swear to a new affidavit, or the judge may want to review the case file.

2007 page 101


b. If judge determines that there is sufficient

probable cause, the judge signs capias pro fine(s) and impresses municipal court seal on capias pro fine.

3. Clerk does the following:

a. Coordinates service of the capias pro fine

with the police department, marshals and warrant officers;

b. Enters defendant into OmniBase system for

DPS failure to pay, if city contracted with DPS;

c. Coordinates with the regional database system

for arrest, if contracted; d. Enters defendant into third party warrant

collection company system for collection after 60 days from default, if city contracted;

e. Mails optional courtesy notice of capias pro

fine, if court policy. f. Files case(s) in capias pro fine status.

Sometime the seal is printed on the capias pro fine by the court software; sometimes the clerk impresses the seal on the capias pro fine after the judge signs the capias pro fine. Defendant is assessed a $30 court cost. $20 is sent to the state, the city must pay OmniBase $6, and the city retains $4. The defendant must pay 30 percent of what he or she owes. The 30 percent is paid to the vendor.

3. If capias pro fine is served or processed by a peace officer and the defendant is convicted:

a. The clerk collects a $50 warrant fee in

addition to other court costs. b. Clerk receipts warrant fee with other court

costs.


4. If capias pro fine is served,

a. Clerk is required to have probable cause


b. Defendant may request: (1) To lay fine out in jail;

Article 15.26, C.C.P. Judge required to conduct an indigence hearing no later than the business day following the defendant’s arrest.

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(2) Community service (if not previously

offered); (3) To pay the fine in installments or at a

later date; or (4) To pay fine in full.

5. Release of records a. Clerk makes affidavits available for public

disclosure. b. Clerk makes and sells copies of affidavits

upon request.


2007 page 103



page 104 2007


CHAPTER 20 DEFENDANT ARRESTED When a defendant is arrested, a magistrate or the judge who issued the warrant may set the defendant’s bail. If the judge who has jurisdiction over the case sees the defendant, the judge may take the plea. If an arrest is for an out of county fine-only arrest warrant, the magistrate may take the plea, set the fine, allow community service to discharge the fine, or grant jail time to discharge the fine and costs. The magistrate has 11 business days to send the orders to the court of jurisdiction. (Article 15.18, C.C.P.) If a defendant is arrested on a capias pro fine, the judge of the court who has jurisdiction over the case must do an indigent hearing no later than the business day following the defendant’s arrest. If the defendant intentionally failed to make a good faith effort to discharge the judgment or the defendant is not indigent, the judge may confine the defendant to jail. (Article 45.046, C.C.P.) A certified copy of the judgment, sentence and order is sufficient to authorize confinement. The clerk’s responsibility is to handle the paperwork from the jail. The clerk receives the bond, fine money or jail credit paperwork from jail.

Checklist 20 Notes

1. Case preparation for arrest without a complaint or warrant—case not yet filed.

a. Clerk receives paperwork (bond, magistrate

form, copy of jail-intake form, cover sheet of arrest report, etc.) from jail.

b. Clerk prepares complaint if one not already

filed with judge. Complaint sworn, signed and impressed with municipal court seal, and filed in docket.

c. Clerk prepares case file or jacket if necessary. d. Clerk files bond, and other paperwork from

jail with case file.

2. Case already filed, warrant or capias executed. a. Clerk receives paperwork from jail (bond,

magistrate form, copy of jail-intake form, cover sheet of arrest report, etc.).

b. Clerk files bond, and other paperwork from

jail with case file.

Complaint initiates charges. See Complaints CHECKLIST 1 and Docketing CHECKLIST 2. If judge took plea at jail, complaint has already been prepared and sworn to at the jail. The judge accepts the complaint before requesting a plea. (Note: Some judges will not take the plea at the jail but will just set the bond and set a hearing for open court.)

2007 page 105


(1) Clerk sets defendant for trial. (2) Clerk notifies defendant and attorney,

if any, of trial setting. (3) If cash bond, clerk deposits money in

trust account.

i. Defendant signed conditional plea of nolo contendere.

ii. If defendant appears for trial, court proceeds to trial. Cash bond required to be refunded to defendant after defendant has made all required appearances.

iii. If defendant fails to appear for

trial, judge forfeits bond for fine and costs (only if defendant signs conditional plea of nolo contendere). If defendant did not sign conditional plea, see CHECKLIST 22 for bond forfeiture procedures.

iv. If defendant signed

conditional plea, clerk immediately notifies defendant by regular mail of

CHECKLIST 9. This notification is sent regular mail. Attorney must have a letter of representation on file with court. Cash by itself is not a bond; cash is the security backing the bond. See TMCEC FORMS: CASH BOND; PERSONAL BOND; SURETY BOND AND OATH OF SURETY. Money does not have to be deposited in a separate bond account. It can be placed in a separate fund in the city’s general revenue account. It cannot, however, be co-mingled and used for general revenue purposes while being held in trust. Maintain a record of all bond receipts. Article 45.044, C.C.P. Defendant may post a cash bond and enter a plea of nolo contendere if they fail to appear. Article 17.02, C.C.P. See Trial CHECKLIST 9. CHECKLIST 22-15. Article 45.044, C.C.P. Defendant has 10 days from date of judgment to request new trial. If defendant requests new trial, judge reinstates bond and sets case for trial. Article 45.044, C.C.P.

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court’s action of the bond

forfeiture. v. If defendant fails to request

new trial, judgment becomes final.

vi. Clerk notes judgment in

docket.

If defendant has been in jail, court is required to give defendant jail credit of at least $50 for the period of time which is not less than eight (8) hours or more than 24 hours. Article 45.041 and 45.048, C.C.P.

vii. If traffic offense, clerk reports conviction to Texas Department of Public Safety.

3. Court receives fine money from jail.

a. Clerk prepares receipt. b. Clerk notes payment on file and in docket. c. If traffic offense, court reports conviction to

Texas Department of Public Safety, if not already reported.

d. Clerk deposits fine and costs.

CHECKLIST 23-4. Defendant arrested on a capias pro fine or judge took plea at jail. (Note: A magistrate can take a plea only on out of county fine-only warrants. The magistrate must send the orders to the court of jurisdiction within 11 business days.) CHECKLIST 23-4. Court is required to report convictions after judgment is signed and does not wait until a final payment is made. Section 543.203, T.C.

4. If warrant, capias or capias pro fine executed: a Clerk ensures that warrant returned to court

and warrant return signed. b. If warrant served or processed by a peace

officer and defendant is convicted, the court is required to collect a $50 warrant fee in addition to other court costs.


5. Defendant committed to lay out fine and costs. a. Judge required to put commitment order in

writing after a hearing. b. Clerk makes sure judgment completed

properly and filed with case file.

Commitment order must state that community service would not have been an undue hardship. Article 45.06, C.C.P.

2007 page 107


c. Clerk notes on file and in docket that fine and

costs discharged through jail time credit.

State Comptroller does not require city to remit court costs that are discharged through jail credit.

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CHAPTER 21 JUVENILES AND MINORS A child is a person who is at least age 10 and under the age of 17. (Section 51.02(2), F.C. and Article 45.058(h), C.C.P.) A child is commonly called a juvenile. The term “juvenile” is not defined.

A. Jurisdiction


1. Certain traffic offenses: a. A juvenile traffic offender is called a minor

and is defined as a person who is younger than 17 years of age.

b. Municipal court has jurisdiction if the child is

at least 10 year of age.

2. Status Alcoholic Beverage Code offenses: a. Under the Alcoholic Beverage Code, a

“minor” is a person under 21 years of age. b. Municipal court has jurisdiction if the child is

at least 10 year of age.

3. Certain Education Code offenses: a. For purposes of compulsory attendance under

the Education Code, a child is a person who is at least six (6) years of age or younger than six (6) and has been previously been enrolled in first grade and who has not yet reached his or her 18th birthday.

b. Municipal court has jurisdiction if the child is

at least 10 year of age. c. For purposes of other Education Code

offenses, a child is a person who is at least age 10 and under the age of 17.

CHECKLIST 21-4a. Section 729.001, T.C. Section 51.02(2), F.C.; and Article 45.058(h), C.C.P. CHECKLIST 21-5a. Section 106.01, A.B.C. If there are two prior convictions and the minor is not a child (under age 17), the third offense is not a Class “C” Misdemeanor. See waiver of jurisdiction over juveniles. CHECKLIST 21-8a. Section 25.085, E.C. The school board may adopt a policy requiring a student who voluntarily enrolls in school or attends school after his or her 18th birthday to attend school until the end of the school year. The 18 year old can be charged with the offense of failure to attend school, but the parent cannot be charged with the offense of parent contributing to nonattendance.

4. Penal Code Class C misdemeanors except:

a. Municipal court does not have jurisdiction of the offense of public intoxication when the offender is under the age of 17.

Section 51.02(2), F.C.; and Article 45.058(h), C.C.P. CHECKLIST 21-7a. Section 51.03(f), F.C.

2007 page 109


b. If the defendant is at least age 17 and younger than age 21 and charged with public intoxication, the offender is subject to the penalties in Section 106.071, A.B.C.

c. Municipal court has jurisdiction if the child is

at least 10 years of age of other Penal Code Class C misdemeanors.

5. Status tobacco offenses in the Health and Safety

Code: for purposes of status tobacco offenses, a “minor” is an individual under the age of 18 years of age.

Section 49.02(e), P.C. If there are two prior convictions, the third offense is not a Class “C” misdemeanor if the defendant is under the age of 21. Section 51.02(2), F.C. and Article 45.058(h), C.C.P. CHECKLIST 21-6a. Section 161.252(a), H.S.C. The court may not transfer to juvenile court a tobacco offense involving persons under the age of 17. Municipal court has jurisdiction of status tobacco offenses if the child is at least 10 years of age. Section 51.02(2), F.C.; and Article 45.058(h), C.C.P.

6. Municipal court has jurisdiction over juveniles

committing other fine-only offenses including city ordinances.

7. Notice to Juvenile Court - A municipal court is required to notify the juvenile court of pending complaints filed against juveniles in which jurisdiction is not waived, except for: • Traffic offenses; • Tobacco offenses; or • Public intoxication (municipal court has no

jurisdiction). a. Clerk prepares notice and mails notice to the

juvenile court. b. Upon disposition of the case, the clerk sends

notice to the juvenile court of the disposition of the case, regardless of the disposition.

Municipal court has jurisdiction over the child committing city ordinance offenses if the child is at least 10 year of age. Section 51.02(2), F.C. and Article 45.058(h), C.C.P. Section 51.08(c), F.C. TMCEC FORM: REPORT TO JUVENILE COURT OF COMPLAINT FILED. Send notice regular mail. This is an administrative duty and does not require a judicial order or signature.

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B. Waiver of Municipal Court Jurisdiction and Transfer of Child to Juvenile Court Municipal courts are required to waive jurisdiction over juveniles charged with non-traffic offenses (except tobacco) after two (2) prior convictions. If a court employs a juvenile case manager under Article 45.056, C.C.P., the court is not required to, but may, waive jurisdiction over the non-traffic offenses. It would be prudent for the municipal judge, clerk and other interested officials to meet with the juvenile court judge in your respective jurisdiction to devise a system of transfer that is acceptable to both courts.


1. Court determines whether to retain jurisdiction or to waive jurisdiction and transfer case involving child under the age of 17 to the juvenile court.

a Clerk reviews court records of juvenile. b. If record shows defendant has two prior

convictions of non-traffic offenses (excluding tobacco offenses):

(1) Clerk prepares an “order of waiver of

jurisdiction” for the judge’s signature. (2) After judge signs order, clerk notes

order on docket of defendant’s case. c. Clerk makes copy of order and original case

papers in defendant’s file. d. Clerk sends original order and original case

papers to juvenile court. e. Court should notify defendant that case has

been transferred to juvenile court. A copy of the transfer order is sufficient notice.

2. Clerk archives juvenile’s case.

Court may waive jurisdiction but is not required to do so on the first or second non-traffic charges, excluding tobacco offenses, filed in the court. Section 51.08(b)(2), F.C. Section 161.257, H.S.C. TMCEC FORM: WAIVER OF JURISDICTION AND TRANSFER TO JUVENILE COURT. Section 51.08(d), F.C. When court waives jurisdiction because of two prior convictions, include information on prior conviction in waiver notice. Section 51.08, F.C. Copies are now the municipal courts case file. The transfer to the juvenile court disposes of case in municipal court.

3. If a court has a juvenile case manager, Court may

retain jurisdiction but does not have to.

4. If a court does not have a juvenile case manager, court must waive jurisdiction if defendant has two (2) prior convictions for non-traffic offenses other than tobacco offenses.


C. Appearance and General Procedures If municipal court retains jurisdiction and proceeds with the case, court determines if parent’s presence is

2007 page 111


required. Parent’s presence required for all proceedings if the child or minor is under the age of 17 unless the defendant is married. (Article 45.0215, C.C.P.) Marriage removes the disability of minority. Thus, the parents of defendants who are younger than 17 years of age and who are married need not be summoned. Section 1.104, F.C. “Parent” includes a person standing in parental relation, a managing conservator or a custodian. Article 45.057(a)(3), C.C.P. All notices and summons to parent(s) and child should contain a warning of child and parent’s continuing obligation to give court written notice of current address. Article 45.057(i) and (h), C.C.P.


1. Court (clerk) may send a courtesy notice to parents or guardian.

a. Mail courtesy notice to parent(s) or guardian

notifying parent that his/her presence is required for all proceedings if the child or minor is under the age of 17.

b. Mail notice to child of court date and time to

appear with parent. c. Send notice to all defendants charged with

Alcoholic Beverage Code offenses, regardless of their age, to appear in open court.

The courtesy notice is just a letter or notice and not required. (optional) The judge makes this decision. Notice sent regular mail. Notice sent regular mail. Notice sent regular mail. All minor defendants charged with an Alcoholic Beverage Code offense, must appear in open court. Section 106.10, A.B.C.

2. If parent and child appear, court proceeds.

3. If parent does not appear after being notified with courtesy letter or notice, clerk proceeds at the direction of judge to:

a. Reset case.

b. Prepare parental summons for judge’s

signature.

The court must summon the parent(s) or guardian to appear in open court with his or her child (a person under the age of 17). Article 45.0215, C.C.P.

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c. After judge signs and impresses municipal

court seal on the summons, clerk gives summons to police officer, marshal or warrant officer for service.

e. If the parent fails to appear, the judge may waive the requirement of the presence of the parent, guardian or managing conservator only after the summons has been properly served. If the child appears without the parent, the court may proceed.

Notice sent regular mail. Notice should contain warning of child and parent’s continuing obligation to give court written notice of current address. Article 45.057(i) and (h), C.C.P.

d. Clerk sends notice of reset date and time of case to juvenile defendant.

TMCEC FORM: PARENTAL SUMMONS. Note: Clerks may not serve a summons.

A summons must have been properly served by a peace officer. If the parent, guardian or managing conservator fails to respond to the summons, it is punishable as a Class C misdemeanor (maximum fine $500). The prosecutor initiates filing this case. Article 45.0215(d), C.C.P.

Notice of obligation to notify court of any change of address within seven (7) days of moving.

Clerk should have copies of Article 45.057(h) and (i), C.C.P. on judge’s bench.

f. Court required to provide a copy of Article 45.057(h) and (i), C.C.P., to child and parent when they appear in court.

TMCEC FORM: NOTICE OF CONTINUING OBLIGATION TO INFORM COURT OF CHILD’S RESIDENCE.

4. If the case is to be reset for any reason, the clerk resets

the case at the judge’s direction. The clerk provides the defendant and his/her parent with a specific:

• Place; and • Date;

• Time.

5. Court required to give a copy of Article 45.0216, C.C.P. to the child and parent if the offense is a penal offense including: Penal Code offenses, penal ordinance offenses, and Education Code offenses except the offense of failure to attend school, drug paraphernalia, etc.

Article 45.0216, C.C.P. The court is required to give to the child and parent a copy of the right to expunction and the law regarding expunction. The clerk should have a copy of the right to expunction and a copy of the

law regarding expunction on the

2007 page 113


judge’s bench. TMCEC FORM: OFFICIAL NOTICE EXPUNCTION RIGHTS: PENAL OFFENSES/DEFERRED DISPOSITION/TEEN COURT.

Article 45.054 and .055, C.C.P.

A student required to make a court appearance, including days absent from school due to traveling, receive an excused absence from the school to make the court appearance. (Section 25.087, E.C.)

6. Court required to give the child and the parent a copy of Article 45.055, C.C.P., if the offense is failure to attend school.

The court is required to give to the child and parent a copy of the right to expunction and the law regarding expunction of conviction of the offense of failure to attend school. The clerk should have a copy of the right to expunction and a copy of the law regarding expunction on the judge’s bench. TMCEC FORM: FAILURE TO ATTEND SCHOOL NOTICE OF EXPUNCTION RIGHTS.

a. Clerk notes plea on the docket.

7. At the initial appearance, the judge requests and

accepts a plea (usually this plea is in writing).

b. Clerk files any paperwork with case file.

8. On a plea of not guilty, judge determines whether the

juvenile offender wants to:

b. Exercise his or her right to a trial by jury.

c. The judge may set bail, if applicable.

9. Clerk sets the case according to the juvenile offender’s request.

CHECKLIST 9-3.

a. Waive a jury trial and proceed with a non-jury

trial; or

All trials are required to be open to the public. Article 1.24, C.C.P. CHECKLIST 9-5.

10. Clerk informs both the juvenile offender and his or her If possible, have the juvenile and

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parent or guardian of the date, time and place of the trial.

parent or guardian sign for the new date and time so that you have documentation that they received the notice.

11. On a plea of “guilty” or “no contest,” judge informs the juvenile offender and his or her parent or guardian of the possible options to dispose of the case:

b. Teen court;

c. Deferred disposition;

CHECKLIST 6.

CHECKLIST 8.

CHECKLIST 7.

a. Driving safety course (DSC);

d. Payment of fine with no other sanctions or conditions required for the offense;

e. Payment of fine with imposition of other sanction under Article 45.057, C.C.P.:

(3) Clerk files case in active file to monitor completion of sanction.

CHECKLIST 12.

TMCEC FORMS: JUDGMENT: POSSESSION, PURCHASE, CONSUMPTION OR RECEIPT OF CIGARETTES OR TOBACCO PRODUCT BY MINOR – NOT GUILTY; JUDGMENT: PURCHASE OF ALCOHOL BY MINOR, ATTEMPT TO PURCHASE ALCOHOL BY MINOR, CONSUMPTION BY MINOR, MINOR IN POSSESSION OF ALCOHOL, MISREPRESENTATION OF AGE BY MINOR-GUILTY; JUDGMENT: PURCHASE OF ALCOHOL BY MINOR, ATTEMPT TO PURCHASE ALCOHOL BY MINOR, CONSUMPTION BY MINOR, MINOR IN POSSESSION OF ALCOHOL, MISREPRESENTATION OF AGE BY MINOR-NOT GUILTY; JUDGMENT: DRIVING UNDER THE INFLUENCE OF ALCOHOL BY MINOR – GUILTY; JUDGMENT: DRIVING UNDER THE INFLUENCE OF ALCOHOL BY MINOR – NOT GUILTY.

(1) Clerk notes judgment for fine amount

and sanctions in docket and files judgment in case file.

(2) Clerk notes sanctions ordered in

judgment for any offense a juvenile is charged with including traffic offenses, Education Code offenses, Penal Code offenses except minor public intoxication, and city ordinance offenses, Alcoholic Beverage Code offense, and tobacco offense, etc.

CHECKLIST 21-9.

CHECKLIST 2.

CHECKLIST 21-2.

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f. For Alcoholic Beverage Code offense sanctions, see Sections 106.041, 106.071 and 106.115, A.B.C.

g. For specific tobacco offenses, see Section

161.253, H.S.C.

CHECKLISTS 21-5b AND 21-5c.

CHECKLIST 21-6b.

Section 729.001, T.C., provides that Chapter 729 applies to a person who is under the age of 17. Municipal courts may not waive jurisdiction over traffic offenses committed by a person under age 17 regardless of the number of convictions for traffic offenses. (Section 51.08, F.C.) Courts must use Chapter 45, C.C.P., procedures for the handling minors charged with traffic offenses.

1. Offenses Checklist 21-4a

a. Transportation Code Chapters 541-600,

Subtitle C (Rules of the Road), other than an offense punishable by imprisonment or confinement in jail under Secs. 550.021, 550.022, 550.024, and 550.025;

b. Transportation Code Chapter 601 (Motor Vehicle Safety Responsibility Act);

c. Transportation Code Chapter 621 (General Provisions Relating to Vehicle Size and Weight);

e. Transportation Code Chapter 681 (Privileged Parking).

Chapter 729, T.C.

D. Traffic and Other Motor Vehicle Misdemeanors

Notes

1. Clerk (with the prosecutor) verifies the jurisdiction of offense by identifying the traffic law that is alleged to have been violated by a person under the age of 17. Municipal court has jurisdiction over juveniles charged with the following offenses:

d. Transportation Code Chapter 661 (Protective

Headgear for Motorcycle Operators and Passengers); and

Municipal courts have jurisdiction over juveniles charged with the offense of Failure to Maintain Financial Responsibility.

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2. Penalties Not all the penalties are listed here, just some of the more common ones. Each court should be sure to check the many penalty statutes in the Transportation Code.

Checklist 21-4b Notes

1. Clerk verifies (with the prosecutor) the general and specific penalties of offense by identifying the traffic law that is alleged to have been violated by a person under the age of 17:

Section 729.001(c), T.C., provides that the fine range provided in the Transportation Code violations applies to violators under age 17.

a. Registration of Vehicles – Chapter 502, Section 502.401, (General Penalty) – A fine not to exceed $200.

Section 521.025, T.C., provides that if a person fails to display a driver’s license but actually had a valid driver’s license on the day of the offense, it is a defense to the prosecution. The prosecutor must make a motion to dismiss the charge.

b. Driver’s License Offenses – Chapter 521, Section 521.461 (General Penalty) – A fine not to exceed $200.

c. Rules of the Road Offenses – Subtitle C, (Chapters 541-600): Section 542.401, (General Penalty) – A fine of not less than $1 or more than $200.

(1) Fines for no seat belt are a minimum of $25 and a maximum of $50. Section 545.413.

(2) If the driver is charged with not having a child secured, the fines are a minimum of $100 and a maximum is $200. Section 545.412.

(3) The fine for passing a school bus is a minimum of $200 and a maximum of $1000. Section 545.066.

The court may double the minimum and maximum fines for offenses committed in a construction or maintenance work zone when workers are present except for offenses under Chapters 548 (inspection of motor vehicles) or 552 (pedestrian offenses) or Sections 545.412 (child passenger safety seat systems offense) or 545.413 (safety belt offenses). Section 542.404, T.C.

d. Motor Vehicle Safety Responsibility Act –

Chapter 601.

(1) Section 601.191, (Specific Penalty) – A minimum fine of $175 and a maximum fine of $350.

If the court determines that a person has not been previously convicted of Failure to Maintain Financial Responsibility and that the person is economically unable to pay the fine, the court may reduce the fine to not less than $175. Section 601.191(d), T.C.

(2) Section 601.191(c), (Specific Penalty) On a second or subsequent conviction

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– If a person has been previously convicted of an offense of failure to maintain financial responsibility, the fine is not less than $350 or more than $1000. (The complaint must be enhanced by the prosecutor alleging a prior judgment and the prosecution must prove the prior judgment before the court may assess this fine.)

If a person is covered with valid insurance or other form of financial responsibility at the time of offense, presents it to the court, and the court (clerk) verifies that it is valid at the time of the offense, the court shall dismiss the charge. No fee may be charged.

for failure to maintain financial responsibility, the court shall order the sheriff to impound the vehicle if the defendant was an owner at the time of the offense and at the time of conviction. Section 601.261, T.C.

e. General Provisions Relating to Vehicle Size and Weight – Chapter 621, Section 621.507, (General Penalty) – A fine not to exceed $200. (Subsequent offenses include jail time. Hence, municipal court does not have jurisdiction.)

f. Protective Headgear for Motorcycle Operators and Passengers – Chapter 661, Section 661.003(h), (Specific Penalty) – A minimum fine of $10 and a maximum fine of $50.

All persons under the age of 21 must wear protective headgear. Exceptions to this rule are contained in Sections 661.003(c) and (d), T.C.

g. Privileged Parking – Chapter 681, Section 681.011 (Specific Penalty):

(1) First conviction – A fine of not less than $250 or more than $500;

(2) If the person has one previous conviction, the fine is not less than $300 or more than $600;

(4) If the person has three (3) previous

convictions, the fine is not less than $500 or more than $1000 and not less than 20 or more than 50 hours of

(3) If the person has two previous

convictions, the fine is not less than $300 or more than $600 and not less than 10 or more than 20 hours of community service;

community service; and

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(5) If the person has four (4) previous

convictions, the fine is $1000 and 50 hours of community service.

2. In addition to the fine and specific penalties, the court may require optional sanctions under Article 45.057, C.C.P.

CHECKLIST 21-9.

3. There is no right to expunge traffic convictions of juvenile defendants unless the offenses are dismissed under Article 45.051, C.C.P. (deferred disposition). See Article 45.0216, C.C.P.

CHECKLIST 21-16.

E. Alcoholic Beverage Code

1. Status Offenses It is not an offense if the minor purchases an alcoholic beverage under the immediate supervision of a commissioned peace officer engaged in enforcing the provisions of the Alcoholic Beverage Code. Section 106.02, A.B.C.

Checklist 21-5a Notes

1. Clerk reviews citation or complaint filed with the court and if there are issues regarding filing the charges, the clerk must contact the city prosecutor (the city attorney or deputy city attorney).

a. Purchase of Alcohol by a Minor; b. Attempt to Purchase Alcohol by a Minor;

Section 106.04, A.B.C. c. Consumption of Alcohol by a Minor;

Section 106.02, A.B.C.


d. Driving Under the Influence of Alcohol by a

Minor;


e. Possession of Alcohol by a Minor;


f. Misrepresentation of Age by a Minor; and Section 106.07, A.B.C.

Section 49.02(e), P.C. g. Public Intoxication (under age 21 but at least age 17).

2007 page 119


2. General Penalty Provision, Section 106.071, A.B.C. Checklist 21-5b Notes

1. Section 106.071, A.B.C., provides the punishment scheme for the following violations:

a. Purchase of Alcohol by a Minor;

b. Attempt to Purchase Alcohol by a Minor;

e. Misrepresentation of Age by a Minor; and



c. Consumption of Alcohol by a Minor; d. Possession of Alcohol by a Minor;




f. Public Intoxication under the Age of 21.

Section 49.02(e), P.C. (Municipal court has jurisdiction if the defendant is at least 17 years of age.)

2. A conviction for an Alcoholic Beverage Code offense except driving under the influence (DUI) is punishable as a Class C misdemeanor.

a. Judge signs judgment setting fine amount and

ordering required sanctions. (1) Clerk collects the fine and the state

and local court costs.

Section 106.071, A.B.C. Maximum fine of $500.

Section 106.115(c), A.B.C. The judge orders the alcohol

(2) Clerk receipts payment. b. For a first time offense: (1) Judge must order attendance at an

alcohol awareness program for a first time offense;

(2) The minor has 90 days from the date

of judgment (conviction) to submit to

TMCEC FORMS: JUDGMENT: PURCHASE OF ALCOHOL BY MINOR, ATTEMPT TO PURCHASE ALCOHOL BY MINOR, CONSUMPTION BY MINOR, MINOR IN POSSESSION OF ALCOHOL, MISREPRESENTATION OF AGE BY MINOR – GUILTY; JUDGMENT: PURCHASE OF ALCOHOL BY MINOR, ATTEMPT TO PURCHASE ALCOHOL BY MINOR, CONSUMPTION BY MINOR, MINOR IN POSSESSION OF ALCOHOL, MISREPRESENTATION OF AGE BY MINOR – NOT GUILTY.

Maintain a record of payment receipts.

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the court evidence of satisfactory completion of the alcohol awareness program.

(3) Court may provide list of alcohol

awareness course providers in community, but may not suggest which provider to attend.

awareness course in the judgment. Court may require that the parent or guardian of the minor attend the alcohol awareness program when the minor is younger than 18 years of age. Section 106.115(a), A.B.C.

(4) Judge must order minor to complete

eight (8) to 12 hours of alcohol-related community service (ordered in judgment).

Community service ordered must be related to education about or prevention of misuse of alcohol if programs and services are available in the community. If educational programs and services are not available, the court may order community service that it considers appropriate for rehabilitative purposes. Section 106.071(e), A.B.C.

(a) Clerk provides copy of local providers who will accept community service workers.

(b) Clerk provides minor with

order and paperwork to take to community service provider to sign and bring back as proof of completing community service hours.

(5) Judge must order the Texas

Department of Public Safety (DPS) to suspend or deny issuance of the minor’s DL or permit for 30 days (ordered in judgment).

(a) After judge’s order, clerk

immediately completes a DIC-15 form noting suspension effective 11th day from date of the judgment.

(b) Clerk mails DIC-15 form to the Texas Department of Public Safety.

The judge orders the community service in the judgment.

Section 106.071(h), A.B.C.

TMCEC FORMS: DIC-15.

CHECKLIST 21-9.

(6) In addition to the above sanctions, the court may require optional sanctions under Article 45.057, C.C.P

The judge orders the suspension of or denial of issuance of the driver’s license in the judgment.

CHECKLIST 23-1.

2007 page 121


c. A second conviction of an Alcoholic Beverage Code offense is punishable as a Class C misdemeanor (charge must be filed as a second offense—prior conviction must be alleged):

Only a prosecutor can enhance the charge if it is filed as a first time offense. Maximum fine of $500.


(1) Judge signs the judgment setting the fine amount.

(2) Clerk collects and receipts the fine and the court costs.

Judge may but does not have to require attendance at an alcohol awareness program. Section 106.115(a), A.B.C.

(3) Attendance at an alcohol awareness program is optional(If ordered, the alcohol awareness program is ordered in the judgment.);

(4) Judge required to order community

service—20 to 40 hours of alcohol-related community service:

Community service ordered must be related to education about or prevention of misuse of alcohol if programs and services are available in the community. If educational programs and services are not available, the court may order community service that it considers appropriate for rehabilitative purposes.

The court is required to suspend the defendant’s driver’s license or permit for 60 days. The suspension is effective 11 days from the date of judgment. Section 106.071(h), A.B.C.

(a) Clerk provides community service location.

(b) Clerk provides a copy of

order to defendant

(5) The judge must order the driver’s

license suspended or denied issuance for 60 days (this is ordered in the judgment).

If the court requires the minor to attend an alcohol awareness program, the court may require that the parent or guardian of the minor attend the alcohol awareness program when the minor is younger than 18 years of age. Section 106.115(a), A.B.C.

Judge sets amount of hours. Section 106.071(e), A.B.C. (Order requiring community service is in judgment.)

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(6) The clerk reports the suspension to

the Texas Department of Public Safety using the DIC-15 form.

Section 106.071(f), A.B.C.

(7) In addition, the court may also require

optional sanctions under Article 45.057, C.C.P.

d. Municipal court does not have jurisdiction

over the offense when there are two prior convictions and the offense involves a person who is not a child, i.e., the person is at least 17 years of age.

TMCEC FORM: DIC-15. CHECKLIST 21-9.

For purposes of enhancing the punishment a minor an order of deferred disposition is considered a conviction.

e. When a defendant is at least 17 year of age and under 21 years of age and has two prior convictions under this section (Section 106.071A.B.C.), the offense is punishable by a fine of not less than $250 or more than $2,000; confinement in jail of not more than 180 days; or both fine and confinement; plus 180 days suspension or denial of DL or permit; hence municipal court does not have jurisdiction.

f. If the defendant is younger than 17 and has

two prior convictions for non-traffic offenses except for tobacco offenses, municipal court must waive its jurisdiction and transfer the case to the juvenile court unless municipal court has a juvenile case manager.

If the defendant is under 17 years of age, the court retains jurisdiction follow guidelines for second conviction except the suspension period is 180 days.

CHECKLIST 21-2.

3. Minors charged with an Alcoholic Beverage Code

status offense may request an expunction. Section 106.12, A.B.C. CHECKLIST 20-16. A status offender means a child who is accused, adjudicated or convicted for conduct that would not, under state law, be a crime if committed by an adult. Section 51.02(15), F.C.

3. Specific Penalty Provision, Section 106.041, A.B.C. – Minor D.U.I.

Checklist 21-5c

Notes

1. Section 106.041, A.B.C., provides the punishment for the offense of Driving under the Influence of Alcohol


2007 page 123


by a Minor (DUI).

2. A first conviction is punishable as a Class C misdemeanor.

(2) Clerk receipts payment.

a. Judge signs the judgment setting the amount of the fine.

(1) Clerk collects the fine and the state and local court costs at time of the conviction.

Maximum fine of $500.


(3) Clerk notes the judgment and the payment in the docket.

b. Judge required to order in the judgment that the defendant to attend an alcohol awareness program:

(1) The minor has 90 days from the date of judgment of conviction to submit to the court evidence of satisfactory completion of the alcohol awareness program.

c. Judge is require to order 20 to 40 hours of alcohol-related community service (ordered in judgment):

(1) Clerk provides the defendant copy of the community service order.

(2) Community service order sets due date and number of hours to be performed to defendant.

CHECKLIST 2. Section 106.115(c), A.B.C.

Judge sets number of hours.

Section 106.071(e), A.B.C.


d. In addition, the court may require optional sanctions under Article 45.057, C.C.P.

CHECKLIST 21-9.

See Chapters 524 and 724, T.C.

The court has no authority to order DPS to suspend or deny issuance of the DL. An administrative DL suspension is conducted in the same manner as DWI offenders.

page 124 2007


3. A second conviction is punishable as a Class C misdemeanor (filed as a second offense):

a. Judge signs judgment setting amount of fine.

(1) Clerk collects fine and state and local court costs.

If the court requires the minor to attend an alcohol awareness program, the court may require that the parent or guardian of the minor attend the alcohol awareness program when the minor is younger than 18 years of age. Section 106.115(a), A.B.C.


b. The judge may, but is not required to, order the defendant attend an alcohol awareness program.

(1) If the court requires an alcohol

awareness program, the minor has 90 days from the date of judgment to submit to the court evidence of satisfactory completion of the alcohol awareness program.

If offense is not filed as a second offense, the offense must be handled as a first time offense. Only the prosecutor has the authority to enhance an offense alleging a prior conviction. Maximum fine of $500.


Section 106.115(c), A.B.C.

c. The judge is required to order the defendant to

complete 40-60 hours of alcohol-related community service (ordered in the judgment):


(1) Clerk provides copy of order to

defendant.

Section 106.071(e), A.B.C. Judge sets number of hours.

The court has no authority to order DPS to suspend or deny issuance of the DL. An administrative DL suspension is conducted in the same manner as DWI offenders. See Chapters 524 and 724, T.C.

d. In addition, the court may require optional

sanctions under Article 45.057, C.C.P.

4. Municipal court does not have jurisdiction over the offense of DUI when there are two prior convictions.

CHECKLIST 21-9. Section 106.041(h)(2), A.B.C. For purposes of enhancing the punishment, an order of deferred disposition is considered a

2007 page 125


a. If a defendant is 17 years of age to 20 years

and has two prior convictions under this section, the offense is punishable by a fine of not less than $250 or more than $2,000; confinement in jail of not more than 180 days; or both fine and confinement; plus 180 days suspension or denial of DL or permit.

b. A defendant under the age of 17 must be

transferred to juvenile court if there are two prior convictions for DUI unless municipal court has a juvenile case manager.

CHECKLIST 21-2.

conviction.

When a defendant is at least age 17 years old and under age 21and charged with third and subsequent DUIs, the charge must be filed in county court.

4. Alcohol Awareness Program and Community Service

(a) Defendant Completes Alcohol Awareness Program and Community Service Checklist 21-5d(1) Notes

1. Defendant completes alcohol awareness program within 90 days.

b. Clerk date stamps paperwork when filed with court.

a. Defendant files evidence of completion with the court.

c. Clerk gives evidence to judge (Judge may reduce the fine to one-half the amount of the fine assessed upon completion of alcohol awareness program.).

Upon completion of alcohol awareness program, the judge may reduce the fine to one-half the amount of the fine assessed upon conviction.

(1) If fine paid and judge reduces fine (a court order), clerk must process a refund.

(2) If fine not paid and judge reduces fine (a court order), clerk adds time payment fee.

(3) If fine paid and judge does not reduce fine, clerk files evidence with case file.

(4) If fine not paid and judge does not

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reduce fine, clerk adds time payment fee; judge can order community service to discharge fine or order a time payment plan.

2. Defendant completes community service within 90

days. a. Defendant files evidence of completion with

court. b. Clerk files evidence with case file.

3. If payment of fine and costs complete, case disposed

and can be archived.

If the court collected the total fine and the judge reduces the fine, the court must process a refund. If the court did not collect the fine and 31 days have now passed since the judgment was signed and entered; the time payment fee is now due.

4. If judge reduces the fine to not less than half and defendant has paid fine, clerk processes refund.

(b) Defendant Fails to Complete Alcohol Awareness Program or Community Service Checklist 21-5d(2) Notes

1. Defendant fails to complete the alcohol awareness program within 90 days.

Clerks monitors the cases and after the time passes for a defendant to turn in evidence of completion of an alcohol awareness program and fails to do so, the clerk pulls case and sets case for hearing.

2. Clerk sets defendant for a hearing before judge.

3. Clerk notifies defendant of hearing.

a. If defendant is under age 17, clerk prepares

summons for parents. b. Judge signs summons and impresses

municipal court seal on summons.

Sometimes the clerk impresses the seal on the summons after the judge signs it; sometimes the seal is printed electronically on the summons.


c. Clerk gives summons to peace officer,

2007 page 127


marshal or warrant officer to serve.

d. Clerk sends notice to defendant.

4. Defendant and parent appear at hearing. a. At the hearing, judge may grant defendant

another 90 days to complete alcohol awareness program.

(1) Clerk keeps case in active file. (2) Defendant completes alcohol

awareness program and presents evidence to the court, clerk files evidence with case file.

Notice is sent regular mail.

Section 106.115(c), A.B.C.

Judge may order parents to do any act or refrain from doing any act that will increase the likelihood of the defendant’s chance of completing the alcohol awareness program. Section 106.115(d)(2), A.B.C.

This order can be enforced by contempt under Section 22.02(c), G.C.

(3) If defendant fails to complete alcohol awareness program, clerk gives case to judge to sign order to suspend or deny issuance of driver’s license.

TMCEC FORM: DIC-81. CHECKLIST 21-5d(3).

(4) Clerk reports judge’s order of suspension or denial to Texas Department of Public Safety on DPS form DIC-81.

b. Judge does not grant extension.

Section 106.115(d), A.B.C.

5. Defendant completes alcohol awareness program.

6. Defendant fails to complete alcohol awareness program.

CHECKLIST 21-5d(3).

(c) Defendant Fails to Complete Alcohol Awareness Program or Community Service

Notes Checklist 21-5d(3)

1. Defendant does not complete alcohol awareness program and/or required community service sanction.

a. Clerk provides defendant with a court date to

speak with judge. Section 106.115(c), A.B.C.

Article 45.0215, C.C.P. b. If defendant under age 17, clerk prepares

summons for parents.

c. Judge signs summons and places municipal Sometimes the clerk impresses the

page 128 2007


court seal on summons.

b. Second time offense—suspension is for a

period of time not to exceed one year.

c. The clerk reports the judge’s order to DPS using the DIC-15 form.

This includes if the defendant does not complete alcohol awareness program or community service when deferred disposition is granted. The court must order DPS to suspend or deny issuance of the defendant’s driver’s license

Charge is filed as a second offense.

TMCEC FORM: DIC-15.

d. Clerk gives summons to peace officer to serve.

2. At hearing, judge is required to order the Texas Department of Public Safety (DPS) to suspend or deny issuance of a driver’s license.

a. First time offense—suspension is for a period of time not to exceed six months.

seal on the summons after the judge signs it; sometimes the seal is printed electronically on the summons.


F. Health & Safety Code

1. Tobacco Offenses Committed by Minors

Notes Checklist 21-6a

Definitions:

Section 161.251, H.S.C., incorporates the definitions of “cigarette” and “tobacco product” found in the Tax Code.

“Cigarette” is defined in Section 154.001, Tax Code, as a roll for smoking:

Section 161.257, H.S.C., provides that Title 3, Family Code does not apply to a proceeding under Subsection N (Tobacco Use by Minors). This means that minors charged with tobacco offenses may not be transferred to juvenile court.

(A) that is made of tobacco or tobacco mixed with another ingredient and wrapped or covered with a material other than tobacco; and

(B) that is not a cigar.

“Tobacco product” is defined in Section 155.001, Tax Code, as: (A) a cigar;

(B) smoking tobacco, including granulated, plug-

cut, crimp-cut, ready-rubbed, and any form of

2007 page 129


tobacco suitable for smoking in a pipe or as a cigarette;

(C) chewing tobacco, including Cavendish, Twist,

plug, scrap, and any kind of tobacco suitable for chewing;

(D) snuff or other preparations of pulverized tobacco; or

(E) an article or product that is made of tobacco or a tobacco substitute and that is not a cigarette.

CHECKLIST 1.

Section 161.252(a), H.S.C.

1. Clerk accepts citation or complaint charging offense.

2. Possession, Purchase, Consumption, or Acceptance of Cigarettes or Tobacco Products by a Minor – Elements of this offense are:

a. an individual younger than 18

b. possesses, purchases, consumes or accepts

c. a cigarette or tobacco product (specify the product).

3. Exceptions:

a. It is an exception if the defendant possessed the cigarette or tobacco product in the presence of an adult parent, guardian or spouse.

To give defendant adequate notice of the offense charged, complaint must allege only one specific violation, i.e., “possessed a cigarette” or “purchased a cigar.” A complaint alleging defendant “possessed, purchased or received” or alleging “a tobacco product” is subject to being quashed. The parent, guardian or spouse exception applies only to possession. Section 161.252(b)(1), H.S.C.

b. It is an exception if the defendant is in the

presence of an employer, if possession or receipt is required as part of defendant’s duties as an employee.

c. It is an exception if the defendant is

participating in an inspection or test of compliance in accordance with Section 161.088, H.S.C.

The employee exception applies only to possession or receipt by a minor. Section 161.252(b)(2), H.S.C. This is sometimes known as “the minor sting operation” exception and applies to all Section 161.252 offenses. Section 161.252(c), H.S.C.

2. Penalties for Tobacco Use by Minors. Section 161.253, H.S.C. Checklist 21-6b Notes

page 130 2007


1. Section 161.253, H.S.C., provides the punishments for tobacco offenses committed by persons under the age of 18.

a. Judge signs judgment setting amount of fine.

(1) Clerk collects state and local court costs.


Maximum fine of $250. Section 161.252(d), H.S.C.

b. Judge must suspend execution of the sentence and order the defendant to attend a tobacco awareness program:

(1) If approved tobacco awareness

program is available, judge orders defendant to complete the program by the 90th day after suspending execution of the sentence; or

(2) If tobacco awareness program is not

readily available, order defendant to complete eight (8) to 12 hours of tobacco-related community service by the 90th day after suspending execution of the sentence.

TMCEC FORM: JUDGMENT: POSSESSION, PURCHASE, CONSUMPTION, OR RECEIPT OF CIGARETTES OR TOBACCO PRODUCT BY MINOR – GUILTY (contains suspension and execution of sentence).

Call Office of Tobacco Prevention and Control, Texas Department of Health, 800/345-8647, for list of approved providers or check TMCEC website (www.tmcec

c. Court may order parent or guardian to attend tobacco awareness program with the defendant.

Section 161.253, H.S.C.

Determine if a tobacco awareness program approved by the Texas Health Department is readily available where defendant resides.

.com).

Section 161.253(a), H.S.C. d. Clerk may provide defendant with list of all area providers of tobacco awareness programs, but may not suggest a specific program.

2. If defendant presents evidence on time: a. On first conviction: judge shall dismiss the

case.

(1) Clerk prepares dismissal judgment.

(2) Judge signs judgment.

Section 161.253(e), H.S.C.

Section 161.253(f)(2), H.S.C. TMCEC FORM: JUDGMENT: POSSESSION, PURCHASE, CONSUMPTION, OR RECEIPT OF CIGARETTES OR TOBACCO PRODUCT BY MINOR – GUILTY (contains second

(3) Clerk enters judgment in docket.

dismissal judgment). CHECKLIST 2.

2007 page 131


(4) Clerk archives case file. b. On subsequent convictions: upon completion

of tobacco awareness program, case not dismissed, but judge has discretion to reduce fine to not less than half the fine imposed.

Section 161.253(f)(1), H.S.C.

Charge enhanced and filed as a second or subsequent offense.

(1) Clerk prepares final judgment of

guilty.

(2) Judge signs judgment.

CHECKLIST 2.

Clerk receipts payment.

(3) Clerk notes judgment in docket. (4) Defendant pays fine if not already

paid.

(5) Clerk archives case file

TMCEC FORM: ORDER OF DRIVER’S LICENSE SUSPENSION FOR FAILURE TO COMPLETE TOBACCO AWARENESS PROGRAM.

3. If defendant fails to present evidence on time, the court shall:

a. Order the Texas Department of Public Safety (DPS) to suspend or deny drivers license or permit.

b. The judge specifies in the court order a period of suspension or denial, not to exceed 180 days after date of the order.

c. The clerk notifies DPS of the court order on the DIC-15 form.


TMCEC FORM: DIC-15.

4. Minors charged with a status tobacco offense may

request an expunction. CHECKLIST 21-16c.


G. Penal Code Offenses

1. Offenses Checklist 21-7a Notes

1. Clerk (with prosecutor) verifies the jurisdiction of

offense by identifying the code provision that is alleged to have been violated:

a. Municipal court has jurisdiction over all fine-

only offenses (Class C misdemeanors) in the

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Penal Code. b. The exception to municipal court jurisdiction

over Penal Code Class C misdemeanors is the offense of public intoxication when the person charged is under the age of 17.

c. If the offense is public intoxication and the

defendant is age 17 and under age 21, refer to Alcohol Beverage Subsection of this chapter.

If the offender is younger than age 21, the court must use the same penalties as a person penalized under Section 106.017, A.B.C.

Section 51.03(f), F.C. Municipal court has jurisdiction over a person age 17 or older charged with public intoxication.

2. Penalties

Notes Checklist 21-7b

1. Fine-only offenses in the Penal Code are called Class C misdemeanors.

a. Maximum fine of $500.

Section 12.23, P.C.

b. In addition, the court may also require

optional sanctions under Article 45.057, C.C.P.

Section 12.23, P.C.

2. A minor charged with a Class C misdemeanor Penal Code offense has a right to expunction.

Section 106.12, A.B.C. CHECKLIST 21-16a.

H. Education Code Offenses

1. Offenses

Checklist 21-8a

Notes

1. Clerk accepts complaint or citation filed: a. Rules enacted by school board regarding the

operation and parking of vehicles on school property;

b. Trespass on School Grounds;

CHECKLIST 1.

Section 37.102(c), E.C.

Section 37.107, E.C.



c. Possession of Intoxicants on School Grounds;

d. Disruption of Classes;

e. Disruption of Transportation;


2007 page 133


g. Failure to Attend School.


f. A member of a Fraternity, Sorority, Secret Society, or Gang that Is Not Sanctioned by Higher Education; and


2. Penalties Checklist 21-8b Notes

1. The following offenses are Class C misdemeanors with a maximum fine of $500:

c. Possession of Intoxicants on School Grounds;


Section 37.122(c), E.C

a. Rules enacted by school board regarding the

operation and parking of vehicles on school property;

b. Trespass on School Grounds;

Section 37.102(c), E.C.

d. Disruption of Classes;

e. Disruption of Transportation;

Section 37.121(2)(c), E.C.

See Step 3 below for optional orders specific to the offense of Failure to Attend School.

f. A member of a Fraternity, Sorority, Secret Society, or Gang That Is Not Sanctioned by Higher Education; and

g. Failure to Attend School.

Section 37.124(b), E.C.

Section 37.126(b), E.C.

Section 25.094(e), E.C.

2. In addition to the fine, the court may require optional

sanctions under Article 45.057, C.C.P.

CHECKLIST 21-9.

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3. For the offense of to failure to attend school, the judge

may order any of the following sanctions in addition to the fine upon a finding of guilty:

a. The individual to attend school without

unexcused absences; b. The individual attend a preparatory class for

the high school equivalency exam, if court determines child is too old to do well in formal classroom environment;

c. If the individual is at least 16 years of age, he

or she may be ordered to take the high school equivalency examination administered under Section 7.111, E.C.;

Failure to attend school offense must be filed within 10 school days of the last absence of the defendant. Section 25.0951, E.C. Article 45.054(a)(1)(A), C.C.P. Article 45.054(a)(1)(B), C.C.P. Article 45.054(a)(1)(C), C.C.P.

d. The individual attend a special program the court determines to be in the best interest of the individual, including: • Alcohol or drug abuse program, • Rehabilitation, • Counseling, including self-improvement

counseling, • Training in self-esteem and leadership, • Work and job skills training, • Training in parenting, including

parental responsibility,

• Training in violence avoidance,

• Training in advocacy and mentoring.

Article 45.054(a)(2), C.C.P.

• Training in manners,

• Sensitivity training, and

e. The individual’s parents, managing

conservator or guardian attend a class for students at risk of dropping out;

Article 45.054(b)(3), C.C.P. This order is enforceable by contempt. Article 45.054(b), C.C.P. The court should include this order in the child’s judgment and should notify the parent of the consequences.

The term “parent” includes anyone standing in parental relationship. Article 45.054(h), C.C.P.

2007 page 135


f. The individual complete reasonable community service requirements, or participate in tutoring provided by the school for the courses in which the defendant is enrolled;

g. The individual participate in a tutorial

program provided by the school, in academic subjects for which child is enrolled, for a total number of hours ordered by the court; and

h. The individual’s driver’s license suspended or

denied for up to 365 days.

Article 45.054(a)(4), C.C.P. Article 45.054(a)(5), C.C.P. Article 45.054(f), C.C.P. A dispositional order may not extend beyond 180 days or the end of the school year, whichever period is longer.

i. Refer the child or the child’s parents,

managing conservators or guardians for services under Section 264.302, F.C.; or

Article 45.054(a)(3), C.C.P. This provision only applies to a defendant who is a “child” (i.e., “at least 10 years of age and younger than 17 years of age”).

j. Parent to attend parenting class or parental responsibility program

Article 45.057(b)(3), C.C.P.

k. Require that the child attend a special program that the court determines to be in the best interest of the child:

Programs include: rehabilitation, counseling, self–esteem and leadership, work and job skills training, job interviewing and work preparation, self–improvement, parenting, manners, violence avoidance, tutoring, sensitivity training, parental responsibility, community service, restitution, advocacy, and a mentoring program. Article 45.057(b)(2), C.C.P.

(1) The program must be approved by the

county commissioners if county funds are expended;

(2) The court may not order a parent,

managing conservator, or guardian of a child to pay an amount greater than $100 for the costs of the program;

Article 45.057(b)(2), C.C.P. Article 45.057(c), C.C.P.

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(3) The court may require that a person required to attend this program submit proof of attendance to the court;

(4) A municipal or justice court shall

endorse on the summons issued to a parent, managing conservator or a guardian an order to personally appear at the hearing with the child.

l. An order under this section involving a child

is enforceable under Article 45.050, C.C.P. m. An order under this section not involving a

child is enforceable by contempt. n. The court may not require a student to attend

a juvenile justice alternative education program.

Article 45.057(d), C.C.P. Article 45.057(e), C.C.P. Article 45.057(f), C.C.P. Article 45.057(h), C.C.P. Article 45.054(a-2), C.C.P.

4. A child charged with an Education Code offense except for the offense of Failure to Attend School has a right to an expunction under Article 45.0216, C.C.P.

CHECKLIST 21-16a.

5. A child charged with the offense of failure to attend

school has a right to an expunction under Article 45.055, C.C.P.

CHECKLIST 21-16d.

I. Additional Optional Sanctions Checklist 21-9 Notes

1. In addition to any fine and upon finding that the child committed a fine-only misdemeanor other than public intoxication, the municipal or justice court may:


a. Refer the child or the child’s parents, managing conservators or guardians for services under Section 264.302, F.C.;

b. Order the parent to refrain from conduct that

may encourage the child to violate court order;

Article 45.057(b)(3), C.C.P.

Any order for a parent should be included in the child’s judgment. The court should inform the parent of the consequences of not complying —

c. Order the parent to attend a parenting class or

a parental responsibility program; contempt with a maximum fine of $100 and/or up to three (3) days in

2007 page 137


d. Require that the child attend a special

program that the court determines to be in the best interest of the child. Programs include: • Rehabilitation, • Counseling, • Self–esteem and leadership, • Work and job skills training, • Job interviewing and work

preparation, • Self–improvement, • Parenting, • Manners, • Violence avoidance, • Tutoring, • Sensitivity training, • Parental responsibility, • Community service, • Restitution, • Advocacy, and • A mentoring program.

jail.

(1) The program must be approved by the

county commissioners if county funds are expended;

Article 45.057(b)(2), C.C.P.

(2) The court may not order a parent,

managing conservator or guardian of a child to pay an amount greater than $100 for the costs of the program; and

Article 45.057(c), C.C.P.

(3) The court may require that a person

ordered to attend a program submit proof of attendance to the court.

Article 45.057(d), C.C.P.

e. A municipal or justice court shall endorse on the summons issued to a parent, managing conservator or a guardian an order to personally appear at the hearing with the child.

f. An order under this section involving a child is enforceable as contempt under Article 45.050, C.C.P.

Article 45.057(e), C.C.P.

Article 45.057(f), C.C.P.

2. After the judge signs the judgment ordering additional

sanctions, the clerk should make a copy of the

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judgment (court order) and give a copy to the defendant and a copy to parent.

a. Clerk notes judgment and additional sanctions

in docket. b. Clerk notes in docket when completion

information is due in court on additional sanctions.

c. Clerk files case in active files until defendant completes additional sanctions or fails to do so and court must do a contempt hearing under Article 45.050, C.C.P.

If defendant pays fine and costs and completes sanctions, archive case. If defendant fails to pay fine for complete sanctions, see CHECKLIST 21-10.

J. Default in Payment of Fine or Violation of Court Order Checklist 21-10 Notes

1. Defendant fails to pay fine and/or complete sanction.



a. Clerk schedules a contempt hearing which

gives the child an opportunity to be heard why he/she failed to pay and/or complete sanction.

b. Clerk prepares a summons for juvenile’s

parent. c. Judge signs summons and impresses

municipal court seal on summons.

Article 45.050, C.C.P., requires courts to proceed under Article 45.050, to compel the person to discharge the judgment before issuing a capias pro fine.

Sometimes the clerk impresses the seal on the summons after the judge signs the summons; sometimes the

d. Clerk gives summons to peace officer,

marshal or warrant officer to serve. e. Clerk sends notice to defendant.

2. Day of hearing. a. Judge may:

seal is printed electronically on the summons. Notice is sent regular mail.

If child and/or parent do not appear, judge may still proceed. This is just an opportunity for the child to explain

(1) Refer child to juvenile court for

to the judge why he or she did not pay and/or complete sanction.

2007 page 139


contempt if defendant is still under the age of 17;

• Fine the defendant up to $500; and/or

TMCEC FORMS: DIC-81

(2) Find that the child did not commit contempt and order another payment plan or order community service to discharge the payment; or give more time to complete sanction; or

(3) Retain jurisdiction and find the child

in contempt:

• Order the Texas Department of Public Safety (DPS) to suspend or deny issuance of a driver’s license until the defendant complies (only applies if the defendant is under the age of 17).

b. Clerk uses the DPS form DIC-81 form to

notify DPS of the court order to suspend or deny issuance of driver’s license.

3. If defendant fails to appear at hearing, judge may

issue a nonsecure custody order. a Clerk prepares order. b. Judge signs order. c. Clerk gives order to police department,

marshal or warrant officer to serve.

Article 45.058, C.C.P. TMCEC FORM: ORDER TO TAKE INTO NONSECURE CUSTODY: OFFENDER UNDER AGE 17.

4. If parent fails to appear at hearing, the prosecutor may charge parent with failing to appear at hearing with child—a Class C misdemeanor.

a. Complaint filed with court. b. Probable cause affidavit prepared and sworn. c. Warrant of arrest prepared.


d. If sufficient probable cause, judge signs and

issues warrant.

CHECKLIST 16.

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e. Clerk coordinates service of warrant with police department, marshal or warrant officer.

K. Failure to Appear Checklist 21-11 Notes

1. If the parent does not appear:

a. Determine if the parent has been served with a summons. If not, reset the case.


b. If the parent has been served with a

summons but failed to appear, the court may waive the requirement of the presence of the parents, guardian or managing conservator.

c. If the parent(s) was served with a

summons, the prosecutor may charge the parent(s) with a Class C misdemeanor for failure to appear in court with child. (Maximum fine $500).

Article 45.0215(d), C.C.P. CHECKLIST 1.

2. If a child does not appear for a traffic

offense, the court shall:

a. Report to the Department of Public Safety any minor charged with a traffic offense who does not appear.

b. A court that has filed a report under

this section shall report to the Department of Public Safety final disposition of the case.

Section 521.3452, T.C. TMCEC FORM: DIC-81. Section 521.3452, T.C. TMCEC FORM: DIC-81.

3. If a child fails to appear for any offense

except for traffic, the court may: a. Report to the Department of Public

Safety any minor charged with a traffic offense who does not appear.

Sections. 521.201 and 521.294, T.C. TMCEC FORM: DIC-81.

b. A court that has filed a report under

this section shall report to the Department of Public Safety final

Sections 521.201 and 521.294, T.C. TMCEC FORM: DIC-81 FORM.

2007 page 141


disposition of the case.

4. General procedure when a child fails to appear:

a. A court should issue an order for

nonsecure custody for the child.

Articles. 45.058 and 45.059, C.C.P.

L. Children Taken into Custody The procedures noted in this section place the responsibility of ensuring compliance with non-secure custody on the peace officer who takes into custody a person under 17 years of age.


1. A peace officer who takes into custody a person under the age of 17 for an act committed prior to becoming 17 years of age shall take the person to:

a. A place of nonsecure custody, unless the child

is released to a parent, guardian or other responsible adult; or

If the officer has probable cause to believe that the child is in violation of the compulsory school attendance law under Section 25.085 of the Education Code, the officer may officer may take the child into custody for the purpose of returning the child to the school campus to ensure the child complies with compulsory school requirements. Section 25.091, E.C. and Section 52.01, F.C.

b. Is taken before the municipal court.


Section 52.02(a), F.C., allows a peace officer to bring a child to the child’s school if the principal, principal’s designee, or a peace officer assigned to the campus agrees to assume responsibility for the child for the school day.

2. The place of nonsecure custody must be: a. Designated as such by the head of the law

enforcement agency having custody of the person;


b. Unlocked; c. A multipurpose area; and

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d. Not used as a secure detention area or part of

a secure detention area.

3. A place of nonsecure custody must observe the following procedures:

a. A child may not be secured physically to a cuffing rail, chair, desk, or other stationary object.

b. The child may be held in the nonsecure

facility only long enough to accomplish the purpose of: • Identification;

• Processing; • Investigation;

• Release to parents; or • The arranging of transportation to the

appropriate juvenile court, juvenile detention facility, municipal court, or justice court.

c. Residential use of the area is prohibited. d. The child shall be under continuous visual

supervision by a law enforcement officer or facility staff person during the time the child is in nonsecure custody.

e. The child may not be detained in a place of

nonsecure custody for more than six (6) hours.

4. A child taken into custody may be released to the child’s parent, guardian, custodian, or other responsible adult as provided in Section 52.02(a)(1), F.C., for:

a. A traffic offense; b. An offense other than public intoxication

punishable by fine only; or c. As a status offender or nonoffender

6. If the judge sees the child, the judge may handle all charges against the child.

2007 page 143


M. Children Taken into Custody for Violation of Juvenile Curfew The procedures in this section place the responsibility of ensuring compliance with non-secure custody on the peace officer who takes into custody a person under 17 years of age for a juvenile curfew offense.


1. A peace officer who takes into custody a person under 17 years of age for a violation of a juvenile curfew ordinance shall, without unnecessary delay:

a. Release the person to the person’s parent, guardian or custodian;

Beware that Section 370.002, Local Government Code, requires review, public hearings and reenactment of curfew ordinances no less than every three (3) years.

b. Take the person before a municipal or justice court to answer the charge; or

c. Take the person to a place officially

designated as a juvenile curfew processing office.

Article 45.059(a), C.C.P.

2. A juvenile curfew processing office must observe the following procedures:

a. The office must be an unlocked, multipurpose

area that is not designated, set aside or used as a secure detention area or part of a secure detention area.

b. The person may not be secured physically to a

cuffing rail, chair, desk, or stationary object. c. The person may not be held longer than

necessary to accomplish the purposes of identification, investigation, processing, release to parents, guardians or custodians, and arrangement of transportation to school or court.


d. A juvenile curfew processing office may not

be designated or intended for residential purposes.

e. The person must be under continuous visual

supervision by a peace officer or other person during the time the person is in the juvenile curfew processing office.

page 144 2007


f. A person may not be held in a juvenile curfew

processing office for more than six (6) hours.

3. A juvenile curfew office, if so designated, may also be used as a place of nonsecure custody for children taken into custody for:

a. Traffic offenses; b. Other fine-only misdemeanor offenses; or c. As a status offender.

N. Unadjudicated Children, Now Adults (No Appearance Made) Checklist 21-14 Notes

1. Procedures when child turns age 17:

An individual may not be taken into secure custody for offenses alleged to have occurred before the individual’s 17th birthday except an individual under the age of 17 may be taken into nonsecure custody as allowed by Articles 45.058 and 45.059, C.C.P.

a. Clerk prepares notice (order) of continuing obligation to appear for judge’s signature.

Article 45.060, C.C.P. Defendant must be at least age 17. Court must have used all available procedures under Chapter 45 to secure the defendant’s appearance before the defendant’s 17’s birthday (this includes issuing nonsecure custody orders), before issuing the notice of continuing obligation to appear. Article 45.060(b), C.C.P. TMCEC FORM: NOTICE OF CONTINUING OBLIGATION TO APPEAR: JNA.

b. Judge signs order. c. Clerk gives notice to police department to

serve.

Service can be by personal service or by mail to the last known address and residence of the individual. Notice contains an order to appear.

2. If child, now an adult, appears:

a. Court proceeds to handle all cases filed before

the defendant turned age 17.

2007 page 145


b. Clerk processes paperwork.

3. If the child, now an adult, fails to appear in response to the notice and order to appear.

a. Prosecutor decides to file a sworn complaint

charging the offense of violation of continuing obligation to appear as ordered by the notice. (Not to be confused with Section 38.10, P.C., offense of failure to appear.)

b. Clerk prepares complaint. c. Anyone acquainted with facts can be the

affiant and swear to the complaint.

Section 45.060(c), C.C.P. Court may not issue warrants on the charges filed while the individual was under the age of 17. Article 45.060, C.C.P. (Court may issue nonsecure custody orders.)

TMCEC FORM: VIOLATION OF CONTINUING OBLIGATION TO APPEAR. CHECKLIST 1.

d. Case is entered in docket. e. Court orders a warrant prepared for issuance

for the charge of violation of continuing obligation to appear only. (Court must also have a probable cause affidavit before issuing the warrant.)

CHECKLIST 2. When a warrant is processed or served by a peace officer, the court must assess a $50 warrant fee. Article 102.011, C.C.P. CHECKLIST 16. The court may have nonsecure custody orders issued for the offenses that occurred when the defendant was under the age of 17.

It is an affirmative defense to the prosecution for the charge of violation of continuing obligation to appear as ordered by the notice if the individual was not informed of the individual’s obligation to notify the court of a current address within

f. Clerk prepares warrant of arrest.

seven (7) days of moving. Article 45.060(d), C.C.P. TMCEC FORM: WARRANT OF ARREST-JUDGE.

g. Judge signs warrant after determining

probable cause sufficient. h. Clerk coordinates service of the warrant with

If warrant processed or served by a

page 146 2007


the police department, marshal and warrant officer.

peace officer, the court must add a $50 warrant fee as costs. Article 102.011, C.C.P.

O. Children Now Adults Who Fail to Pay – Capias Pro Fine Checklist 21-15 Notes

1. When a child becomes an adult (is at least age 17) and failed to pay judgments for offenses that occurred when the defendant was under the age 17.

Article 45.045, C.C.P. A capias pro fine may not be issued for an individual convicted for an offense committed before the individual’s 17th birthday unless:

The individual is 17 years of age or older and the court finds that the issuance of the capias pro fine is justified after considering: • the sophistication and maturity of

the individual; • the criminal record and history of

the individual; and • the reasonable likelihood of

bringing about the discharge of the judgment through the use of procedures and services currently available to the court; and

• the court has proceeded under Article 45.050, C.C.P., to compel the individual to discharge the judgment.

2. Child defendant who fails to pay turns age 17. a. Clerk pulls defendant’s case file for judge to

review (judge must determine sophistication and maturity of defendant).

b. Clerk checks defendant’s criminal history with court.

c. Clerk checks that case was set for a contempt

hearing under Article 45.050, C.C.P.

If defendant has not had a contempt hearing, the court can schedule a

d. If the judge determines that the criteria have been met, the judge may issue the capias pro

hearing now and notify the defendant of the date and time of the hearing.

TMCEC FORMS: AFFIDAVIT FOR CAPIAS PRO FINE (JNA); CAPIAS PRO

2007 page 147


fine. e. If the judge issues the capias pro fine, the

clerk gives it to the police department, marshals or warrant officer for service.

FINE (JNA). If capias pro fine processed or served by a peace officer, the court must assess a warrant fee. Article 102.011, C.C.P.

3. The court may still issue an order for nonsecure

custody for the child who is now an adult.

Article 45.045(c), C.C.P. CHECKLIST 21-12.

4. If the child, now an adult, is arrested on the capias pro fine, the court must conduct an indigent hearing to determine:

b. The defendant is not indigent.

a. If the defendant intentionally failed to make a good faith effort to discharge the judgment; or


5. The court may require the defendant to perform

community service to discharge the fine and costs, if the court determines that the defendant has insufficient resources or income to pay.


P. Expunction

1. Expunction under Article 45.0216, C.C.P.

(a) Offenses and Eligibility Requirements Transportation Code offenses and traffic ordinances are an exception to this expunction provision unless the traffic offense is dismissed under deferred disposition. Then this expunction provision applies.

Checklist 21-16a(1) Notes

1. This expunction provision applies to the following offenses:

Article 45.0216(g)(1), C.C.P.

• Penal Code offenses except public intoxication (no jurisdiction if the defendant is under age 17);

• Education Code offenses except failure to attend school; and

• Penal ordinance offenses; and Article 45.0216, C.C.P., does not apply to status offenses under the Alcoholic Beverage Code. They have

• Drug paraphernalia.

page 148 2007


a separate provision Section 106.12, A.B.C.

Article 45.0216, C.C.P., does not apply to tobacco offenses under the under Health and Safety Code. They have a separate provision. Section 161.252, H.S.C.

Article 45.0216, C.C.P., does not apply to failure to attend school offense. It has a separate provision, Article 45.055, C.C.P.

2. Article 45.0216, C.C.P., applies to a dismissal pursuant to Article 45.051 (deferred disposition) or Article 45.052 (teen court) for offenders under the age of 17.

Dismissals under deferred disposition for adult defendants are expunged under Chapter 55 of the Code of Criminal Procedure, which grants authority for other expunctions to the district courts.

Article 45.0216(h), C.C.P.

3. Eligibility requirements for expunction: a. Defendant must not have been convicted of

more than one offense covered by these provisions;

b. Defendant must be at least 17 years of age;

and c. Offense must have been committed before

turning 17.

(b) Procedures Checklist 21-16a(2) Notes

1. At initial appearance of offense, the judge is required to give to child defendant and parent a copy of the law regarding the right to expunge.

.

Article 45.0216(e), C.C.P.

a. Clerk should make sure copies of the law are

on judge’s bench. b. Judge gives copy of law at initial appearance.

TMCEC FORM: OFFICIAL NOTICE OF EXPUNCTION RIGHTS: PENAL OFFENSES/DEFERRED DISPOSITION/TEEN COURT

2007 page 149


2. Procedures are initiated by request of the defendant/movant:

(3) Petition must be sworn to (made under oath).

Clerk has authority to administer this oath. Section 602.002, G.C.

a. Movant/Defendant files petition with the court;

(1) Petition must identify case to be

expunged; (2) Petition must state that the person has

not been convicted of another offense under these provisions; and

b. Clerk accepts petition for filing and date

stamps petition.

TMCEC FORM: APPLICATION FOR EXPUNCTION PENAL OFFENSES.

c. The movant must pay a $30 fee when filing petition.

(1). Clerk receipts fee payment.

• $2 plus postage for each certified mailing of certified copies of an order of expunction.

(2) Clerk gives copy of receipt to movant/defendant.

d. Clerk retrieves the case and notifies the judge.

Article 45.0216(i), C.C.P Court may also require the petitioner to pay the following fees under Article 102.006, C.C.P.: • $1 for postage for each certified

mailing of notice of the hearing date;

3. The court may conduct a hearing but is not require to

do so.

4. If the court finds the person was not convicted of another penal offense while the person was a child, the court shall order the following items expunged: • Conviction or dismissal under Article 45.051 or

45.052; • Complaints;

• Sentences;

Order releases movant from all disabilities resulting from the conviction and that the conviction may not be shown or made known.

Article 45.0216(f), C.C.P. TMCEC FORM: ORDER FOR EXPUNCTION OF RECORDS PENAL OFFENSES.

The order requires the appropriate

• Verdicts;

• Prosecutorial records; • Law enforcement records; and

entities to return the relevant records to the court or to destroy them and send certification to the court that the records have been destroyed.

• Any other documents related to the offense.

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If the case was dismissed under Article 45.051 (deferred disposition) or Article 45.052 (teen court), the court will destroy all the records relating to the case, the alternative sentencing, and the dismissal.

5. The clerk mails certified copies of the order to

appropriate entities and agencies.

Mail sent certified mail return receipt requested.

6. Clerk destroys court records and deletes computer references.

Note: Some courts seal court records order expunged with destruction date on it from records retention schedule and destroy records at that time. Because the court has collected money on that case, some case management software allow the court to delete the name but leave the record there for financial purposes so that auditors can tell that fraud has not occurred.

7. Court or clerk provides a copy of the order to the movant/defendant.

8. Seal the order and make no computer or index reference to it.

Some courts after receiving all the certifications back from all the entities and agencies that their records were destroyed, destroy the order; other courts seal the order and destroy it according to the records retention time.

The 77th Legislature repealed Article 58.01, C.C.P., which required municipal courts follow the sealing provisions of the juvenile courts set out in Section 58.003, F.C. The sealing provisions of the Family Code still apply to offenses that occurred before September 1, 2001. (For those procedures, please see version 3.5 of the TMCEC Bench Book and Level II Study Guide, Juveniles.) For offenses

occurring after September 1, 2001,

the expunction provisions found in Article 45.0216, C.C.P., apply.

The person is released from all

2007 page 151


disabilities resulting from the conviction and that the conviction may not be shown or made known.

2. Expungement for minors convicted of offenses under the Alcoholic Beverage Code

(a) Eligibility To be eligible to petition for an expunction of an Alcoholic Beverage Code conviction that occurred while the defendant was a minor, the petitioner must be 21 years of age and the petitioner must have been convicted of only one Alcoholic Beverage Code offense.

Notes

Alcoholic Beverage Code offenses are specifically excluded from the general juvenile expunction procedures in Article 45.0216, C.C.P.

Checklist 21-16b(1)

1. Movant/Defendant must file a petition to request expunction with the court in which conviction occurred.


2. The petition shall contain the applicant’s sworn statement that he or she was not convicted of any violation of the Alcoholic Beverage Code except for the one that he or she seeks to have expunged.

TMCEC FORM: APPLICATION FOR EXPUNCTION ALCOHOLIC BEVERAGE.

(b) Procedures Checklist 21-16b(2) Notes

1. Movant/defendant files petition with court.

2. Clerk accepts petition for filing and date stamps petition.

3. Movant/defendant must pay required $30 fee when

filing the petition.

4. Clerk receipts payment.

Section 106.12(d), A.B.C. Court may require the petitioner to pay the following fees under Article 102.006, C.C.P.: • $1 for postage for each certified


5. Clerk retrieves file and notifies judge.

• $2 plus postage fore each certified mailing of certified copies of an order of expunction.

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6. The court may, but does not have to, conduct a hearing in open court.

7. The court, upon finding that the applicant’s statement

is true, orders the appropriate entities to return the relevant records to the court or to destroy them.

TMCEC FORM: ORDER FOR EXPUNCTION OF RECORDS ALCOHOLIC BEVERAGE. The order should contain a list of agencies, officials and persons who are subject to the order.

8. Clerk provides a copy of the order to the movant/defendant.

9. The clerk mails certified copies of the order to all the entities and agencies listed in the order.

Mail the order certified mail return receipt required.

10. Clerk destroys the records and deletes computer references.

Note: Some courts seal court records order expunged with destruction date on it from records retention schedule and destroy records at that time. Because the court has collected money on that case, some case management software will allow the court to delete the name but leave a record for financial purposes so that auditors can tell that fraud has not occurred.

11. Seal the order and make no computer or index

reference to it.

Some courts after receiving all the certifications back from all the entities and agencies that their

records were destroyed, destroy the order; other courts seal the order and destroy it according to the records retention time. The person is released from all disabilities resulting from the conviction and the conviction may not be shown or made known.

3. Expungement for Minors Conviction of Tobacco Offenses

(a) Eligibility Requirements

Checklist 21-16c(1) Notes

An individual convicted for an offense under Section 161.252, H.S.C., may apply to court to have multiple convictions expunged. There is no requirement that defendants have achieved a certain age or have only one conviction under Section 161.252 to qualify for expungement.

2007 page 153


1. Defendant must petition the municipal court where the conviction occurred.

2. Defendant must have satisfactorily completed tobacco

awareness program or tobacco-related community service ordered by the court for conviction defendant is petitioning for expunction.


(b) Procedures Checklist 21-16c(2) Notes

1. Movant/defendant files petition with the court.

3. Movant/defendant must pay a required $30 fee.

Section 161.255(b), H.S.C.

2. Clerk accepts petition and date stamps it.

4. Clerk receipts payment and gives defendant copy.

5. Clerk retrieves file and notifies judge.

TMCEC FORM: APPLICATION FOR EXPUNCTION TOBACCO OFFENSES.

Court may require the petitioner to pay the following fees under Article 102.006, C.C.P.: • $1 for postage for each certified


• $2 plus postage for each certified mailing of certified copies of an order of expunction.

6. If above satisfied, the judge shall order that the

conviction(s) and the following be expunged from the record: • Conviction; • Complaint; • Verdict; • Sentence; and • Any other document relating to the offense.

7. Court or clerk provides a copy of the order to the

movant/defendant.

TMCEC FORM: ORDER FOR EXPUNCTION OF RECORDS TOBACCO OFFENSES. Mail the order certified mail return receipt required.

8. The clerk mails certified copies of order to all entities

and agencies listed in the order.

9. Clerk destroys the records and deletes computer references.

Note: Some courts seal court records order expunged with destruction date on it from records retention schedule and destroy records at that time.

page 154 2007


Because the court has collected money on that case, some case management software will allow the court to delete the name but leave the record there for financial purposes so that auditors can tell that fraud has not occurred.

Some courts after receiving all the certifications back from all the entities and agencies that their records were destroyed, destroy the order; other courts seal the order and destroy it according to the records retention time.

10. Seal the order and make no computer or index reference to it.

The person is released from all disabilities resulting from the conviction and the conviction may not be shown or made known.

4. Expunction Procedures for Failure to Attend School Convictions All offenders charged with the offense of failure to attend school must be informed of their right to expunction at the commencement of proceedings in court. The court is required to give a copy of the defendant’s right to expunction and a copy of the statute to the defendant and to the defendant’s parent. Article 45.054(e), C.C.P.

(a) Eligibility Requirements Checklist 21-16d(1) Notes

1. Eligibility requirements: a. Defendant/Movant must not have been

convicted of more than one offense of fail to attend school;

b. Defendant/Movant must be at least 18 years

of age; and

c. Defendant/Movant must have committed the offense before turning age 18.

2. Procedures are initiated by request of the

defendant/movant:

2007 page 155


a. In writing;

b. Identifying the case to be expunged;

c. Stating that the defendant/movant has not been convicted of another failure to attend school offense; and

d. Made under oath.

Clerk has authority to administer oath. Section 602.002, G.C.

(b) Procedures Checklist 20-16d(2) Notes

1. Movant/Defendant files petitions.

2. Clerk accepts petition for filing and date stamps petition.

3. Movant/Defendant must pay a required $30 fee.

TMCEC FORM: APPLICATION FOR EXPUNCTION FAILURE TO ATTEND SCHOOL.

Article 45.055(d), C.C.P. Court may also require the

4. Clerk receipts payment and gives defendant copy.

5. The court is not required to do a hearing.

petitioner to pay the following fees under Article 102.006, C.C.P.: • $1 for postage for each certified


• $2 plus postage fore each certified mailing of certified copies of an order of expunction.

6. If the court finds the person was not convicted of any offense other than the covered offense while the person was a child, the court shall order the following items expunged:

Article 45.055(c), C.C.P. TMCEC FORM: ORDER FOR EXPUNCTION OF RECORDS FAILURE TO ATTEND SCHOOL.

• Conviction;

• Complaints; • Verdicts;

• Sentences; • Prosecutorial records; • Law enforcement records; and • Any other documents related to the offense.

7. The court orders the appropriate entities to return the

relevant records to the court or to destroy them.

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8. The clerk sends by certified mail/return receipt a copy of the order to all that are subject to the order.

The order should list all the entities and agencies that have copies of records.

9. Clerk provides a copy of the order to the movant/defendant.

10. Clerk destroys the records and deletes computer

references.

11. Seal the order and make no computer or index

reference to it.

Some courts after receiving all the certifications back from all the entities and agencies that their records were destroyed, destroy the order; other courts seal the order and destroy it according to the records retention time. The person is released from all disabilities resulting from the conviction and that the conviction may not be shown or made known.

2007 page 157



page 158 2007


CHAPTER 22 BOND FORFEITURE

A. Surrender of Principal Checklist 22-1 Notes

1. Court receives an affidavit for surrender of principal:

b. Clerk immediately gives copy to the judge and State (prosecutor).

a. Clerk date stamps the affidavit.

Article 17.19, C.C.P.; Section 1704.207, O.C. TMCEC FORM: AFFIDAVIT OF INTENTION TO SURRENDER PRINCIPAL.

2. If the judge determines there is sufficient cause to

surrender: a. The clerk files the affidavit with the case; b. The clerk prepares a warrant of arrest or

capias for the judge’s signature; c. The clerk notes on the docket the date the

warrant or capias was issued and to whom the warrant was given for execution; and

The State, bail bond board or the principal may contest the surrender if the State determines that the reason for the surrender was without reasonable cause. Section 1704.207(b), O.C.

TMCEC FORM: WARRANT OF ARREST: SURRENDER OF PRINCIPAL.

If the State contests the surrender, the court will have to set a hearing on the requested surrender and the reason for the surrender. If the judge determines that the surety surrendered the defendant without reasonable cause, the judge may require the person who executed the bond to refund to the principal all of or part of the fees paid for execution of the bond. Section 1704.207(c), O.C.

d. The clerk gives warrant to a peace officer, a

security officer or a licensed private investigator to be executed.

Filing of an affidavit for surrender of the principal and issuance of a warrant does not absolve the surety of liability on the bond. A surety may be released from liability on the bond if, before a judgment nisi is issued, the surety surrenders the principal into custody or produces an affidavit that the defendant is in custody. Article 17.16, C.C.P.

B. Day of Appearance on Criminal Charge

2007 page 159



1. Criminal docket called (defendant fails to appear or answer). Judge directs that name be called outside of courtroom.


a. Clerk or bailiff calls defendant’s name outside of courtroom.

b. Clerk or bailiff notifies judge whether

defendant answered or appeared.

Calling the defendant’s name in the hallway on the sixth floor of the courthouse was considered sufficient under Burns v. State 814 S.W.2d 768 (Tex.App.—Houston 14th Dist.) 1991 rev’s on other grounds, 801 S.W.2d 361 (1992).

2. If defendant fails to answer or appear, prosecutor moves for a forfeiture of the bond. Judge can wait a reasonable amount of time before granting motion for forfeiture.

The clerk has authority to administer oath.

a. Clerk or bailiff swears to an affidavit that name was called outside of courtroom and that defendant failed to appear or answer.

b. Clerk files the affidavit.

TMCEC FORM: BAILIFF’S/CLERK’S AFFIDAVIT OF DEFENDANT’S FAILURE TO APPEAR.

The affidavit is an element of the bond forfeiture. The original affidavit should be filed with the bond forfeiture case. The affidavit may also be used as the probable cause affidavit for a failure to appear. A copy of the affidavit can be filed with the failure to appear charge.

C. Issuance of Capias Checklist 22-3 Notes

1. Clerk prepares the capias: a. Clerk prepares the capias for original

criminal charge. b. Judge signs and issues the capias. (Municipal

court seal must be impressed on the capias.)

CHECKLIST 17.

TMCEC FORM: CAPIAS WARRANT.


CHECKLIST 17.

c. Clerk notes issuance of the capias on the

docket.

CHECKLIST 2.

page 160 2007


d. Clerk gives capias to police department, marshal or warrant officer to serve.

D. Declaring the Forfeiture Checklist 22-4 Notes

1. After the defendant fails to appear, the judge is required to enter a judgment (judgment nisi). The judgment nisi initiates the forfeiture:

a. Clerk prepares the judgment nisi.

b. Judge signs the judgment nisi and impresses it with the municipal court seal.

c. Clerk enters judgment nisi on the scire facias

docket.

Article 22.02, C.C.P. The judge has a reasonable amount of time to sign a judgment nisi.

If surety is a corporate surety, the insurance company is being sued doing business as agent (d/b/a). The prosecutor determines who is being sued in a bond forfeiture lawsuit.

Judgment nisi initiates bond forfeiture. The judgment nisi acts as the State’s petition to initiate the bond forfeiture lawsuit. TMCEC FORMS: JUDGMENT NISI DECLARING FORFEITURE: CASH OR PERSONAL RECOGNIZANCE BOND, or JUDGMENT NISI DECLARING FORFEITURE: SURETY BOND.



E. Scire Facias Docket

1. Clerk enters judgment nisi on scire facias docket: a. Judgment nisi initiates the bond forfeiture

proceedings.

The scire facias docket is a special civil docket for bond forfeiture cases.

TMCEC FORM: SCIRE FACIAS DOCKET.


Rule 26, R.Civ.P., requires the scire facias docket be a permanent record.

2007 page 161


b. A scire facias docket number is assigned.

c. The State of Texas is plaintiff.

Rule 26, R. Civ.P.

Rule 26, R. Civ.P.

d. The principal and sureties, if any, are defendants.

2. Clerk prepares case file for bond forfeiture case.

Rule 26, R. Civ.P.

Rule 26, R. Civ.P.

e. The nature of the action is the bond forfeiture. f. Notes any motions and rulings of the court on

the docket.

Rule 26, R. Civ.P.

F. Issuance of Citation Checklist 22-6 Notes

1. State (prosecutor) requests clerk to issue citation(s):

Rule 99, R.Civ.P.

After entry of the judgment nisi, a citation must be issued to notify the defendant(s) of the lawsuit. Articles 22.03 and 22.04, C.C.P.

TMCEC FORM: CITATION.

2. Clerk prepares citation for issuance.

3. Clerk issues the citation (municipal court seal is impressed on citation) and attaches copy of judgment nisi, the bond, and the power of attorney, if any, to the citation.

A citation is a notice to a person that he or she must appear to answer before the court. The purpose of the citation is to notify the defendant (criminal defendant and sureties, if any) of the pending lawsuit filed against him or her or them.


G. Waiver of Service of Citation

1. Defendant (surety) may waive service of citation by filing with the court a sworn memorandum signed by

Rule 119, R.Civ.P.

page 162 2007


the defendant (surety) or by his or her duly authorized agent or attorney.

a. Waiver effective until written revocation is filed with the clerk.

2. Defendant (surety) still entitled to have a copy of judgment nisi delivered.

3. Surety may file a waiver with the clerk waiving service of citation or may designate a person other than the surety or the surety’s attorney to receive service of the citation.


b. Waiver or acceptance has same force and

effect as if the citation had been issued and served.

H. Service of Citation Checklist 22-8 Notes

1. Service of the citation by clerk after State (prosecutor) requests clerk serve the citation:

a. Clerk endorses the citation with the date and hour received.

b. Clerk serves the citation on the defendant (criminal defendant) by regular mail with a copy of the judgment nisi, bond and power of attorney, if any.

If the defendant posted a cash bond, the citation shall be served to the defendant at the address shown on the face of the bond or the last known address of the defendant. Article 22.035, C.C.P. The citation is mailed regular mail. Article 22.05, C.C.P.

Articles 22.03; 22.04; 22.05, C.C.P. and Rule 103, R.Civ.P.

c. Clerk notes on the bond forfeiture file the date

the citation was mailed.

d. Clerk serves the surety by certified mail return, receipt requested, addressee only:

(1) Citation with a copy of the, judgment nisi, bond and a copy of the power of attorney attached is served.

Citation to a surety who is an individual must be served to the individual at the address shown on

Corporate sureties have designated agents for service of citations. Usually the designated agent is an attorney.

2007 page 163


(2) If the green card is returned and

properly signed, the clerk fills out return portion of citation and enters date of return on scire facias docket.

(3) If green card is returned unsigned, or if someone other than defendant/surety or defendant’s registered agent for service signed the green card, clerk notes information on return portion of citation and on scire facias docket.

e. Clerk notifies prosecutor that service by mail

was successful or unsuccessful so that the prosecutor can request personal service by a peace officer.

a. Clerk issues citation for personal service and notes on file the date and time citation given to peace officer.

If the service was successful, clerk enters date proper person signed green card on citation and on scire facias docket. Clerk files citation with the case and waits for the defendant to file and answer with the court. Go to CHECKLIST 22-9.

2. Personal service by peace officer. If state (prosecutor) requests personal service by a city peace officer:

the face of the bond or the last known address of the individual. Article 22.03(b), C.C.P.

b. Officer endorses citation with date and hour received.

Article 45.202, C.C.P., provides authority for peace officers to serve process issued out of the municipal court anywhere in the county or counties in which the city is situated.

c. Peace officer attempts service on defendant (surety) personally. (Corporate sureties will have a registered agent for service—usually an attorney.)

Rule 105, R.Civ.P. Citation must have a copy of the judgment nisi, bond and power of attorney, if any, attached. Article 22.04, C.C.P.

d. If peace officer is able to serve the citation on

the proper person, officer signs citation, noting manner, person, time, and place served and returns citation to court:

Rule 107, R.Civ.P.

page 164 2007


(1) Clerk enters date of return on scire facias docket.

(2) Clerk files citation return in bond

forfeiture case file and waits for defendant to answer.

Rule 107, R.Civ.P.

e. If officer is unable to serve citation, officer notes cause for failure to serve, the diligence used, and returns the citation to the court.

f. Clerk notes on record (scire facias docket) that citation was not able to be served.

g. Clerk notifies State (prosecutor) that personal service was unsuccessful.

Go to CHECKLIST 22-9.

3. State (prosecutor) by affidavit petitions the court for alternative service of citation.

a. Court decides whether to grant motion for alternative service.

b. When alternative service is granted, the clerk

notes the order on scire facias docket; issues another citation (municipal court seal impressed on citation) and delivers citation to a peace officer.

c. Clerk notes on the scire facias docket the date

and time the citation was given to the peace officer.

If alternative service is granted, the peace officer can leave citation with anyone over age 16 at the address specified in the affidavit.

d. Service by peace officer. (1) Peace officer endorses citation with

date and hour received.

(2) If peace officer is able to serve the citation, the officer leave the citation with the defendant (surety) or someone over the age of 16 at address specified in affidavit.

(3) Officer signs citation, noting manner, person, time, and place served and returns citation to court.

e. Clerk enters date of return on scire facias

2007 page 165


docket.

g. Clerk notes on record (scire facias docket) that citation was served or was not able to be served.

If citation served, go to CHECKLIST 22-9.

f. If officer is unable to serve citation, officer notes cause for failure to serve, the diligence used and returns citation to court.

h. Clerk notifies State (prosecutor) that alternative service was successful or unsuccessful.

3. Service by publication, if requested by State (prosecutor), must be by affidavit; State petitions the court for service by publication. If judge determines sufficient diligence has been used to serve the citation, judge orders service by publication:

Defendant (surety) has 42 days after issuance of citation to answer or if the first publication was 28 days from the return of the citation, within 28 days from the first publication to answer.

a. Clerk issues another citation (municipal court seal impressed on citation) for publication (do not publish judgment nisi).

b. Clerk notes date of issuance on scire facias docket.

c. Clerk publishes the citation in the paper once a week for four weeks. The first publication is to be at least 28 days before the return day of the citation.

d. Clerk executes return of the citation; specifies place and dates of publication; and attaches copy of publication.

Rule 109, R.Civ.P. Court inquires into the sufficiency of the diligence used in attempting to locate the defendant (surety) or agent for service. Rule 114, R.Civ.P.

e. If no answer is filed or appearance entered within the prescribed time, the court shall appoint an attorney to defend the suit on behalf of the defendant (surety).

(1) Judgment may be rendered as in other

cases, but a statement of evidence, approved and signed by the judge shall be filed with the papers of the case as apart of the record.

Rule 244, R.Civ.P.

page 166 2007


(2) The court shall allow a reasonable fee to be paid to the attorney for services. The fee is added on as part of the costs.

I. Filing Defendant’s Answer


1. Defendant (surety) files answer with the court (general denial, specific pleadings or verified pleadings).

b. If answer mailed, clerk keeps envelope and

stamps date and time received and files it.

Answer must be filed on or before 10 am on the Monday following the 20th day after the service of the citation.

If the answer is mailed, 10 additional days are allowed if the answer is mailed by first class mail, properly addressed and mailed on or before the last day for filing an answer. Rule 5, R.Civ.P.

a. Clerk stamps date and time on answer received, gives a copy of the answer to the State (prosecutor), and files original answer in case file.

c. If general denial (answer) is received and

clerk later receives a verified answer, clerk stamps date and time receipt of verified answer.

d. Copies of all answers are given to the State

(prosecutor).

The answer is the formal written statement made by a defendant setting forth the grounds of his or her defense.

e If defendant (surety) answered timely, clerk sets case for trial.

f. If defendant files answer before issuance of

citation , citation is deemed to be issued and served:

(1) Clerk stamps date and time answer is

received and files it.

See Bond Forfeiture Trial CHECKLIST 22-11.

(2) Clerk provides a copy of answer(s) to

the State (prosecutor).

Court must give defendant 45 days notice of a trial date.

(3) Case is set for trial.

g. Defendant enters an appearance in open court:

2007 page 167


(1) If the defendant (surety) enters an appearance in open court either in person or by attorney or by his or her duly authorized agent, the judge shall note the appearance on the docket and enter it in the minutes.

The citation is deemed to be issued and served. This dispenses of the necessity for issuance or service of the citation on the surety.

(2) If the clerk receives an answer before issuing the citation, the clerk should date stamp the answer and note on the file that the answer was received before the issuance of the citation.

(3) If defendant (surety) answered timely,

case is set for trial. h. Clerk provides copies to the prosecutor of all

answers filed.

Rule 121. R.Civ.P.

Court must give defendant 45 days notice of trial date.

J. Setting Case on Scire Facias Docket

Checklist 22-10

Notes

1. Defendant (surety) answers but does not contest forfeiture:

a. Clerk notifies State (prosecutor) that defendant (surety) is not contesting forfeiture.

b. Clerk sets case on scire facias trial docket.

Rule 245 R.Civ.P.

2. Day of trial, court orders judgment for the State.

b. Judge signs judgment.

c. Clerk enters judgment on scire facias docket.

TMCEC FORMS: FINAL JUDGMENT: CASH OR PERSONAL RECOGNIZANCE BOND—FINDING FOR STATE or FINAL JUDGMENT: SURETY BOND—FINDING FOR STATE.


a. Clerk prepares final judgment.

3. State certifies to the clerk the address of the surety:

a. Clerk notifies defendant (surety) by first class mail that judgment has been signed (include a copy of the judgment).

Bond now due to be paid to city.

page 168 2007


b. If underlying criminal charge is a traffic offense, clerk reports the bond forfeiture to the Department of Public Safety within 30 days after the judgment is final.

Section 543.203, T.C.

CHECKLIST 23-4.

4. Defendant’s answer contests forfeiture: a. Clerk sets case on scire facias trial docket. b. Clerk gives surety 45 days notice of trial

setting.

Clerk sets case for trial before the judge.

K. Bond Forfeiture Trial Checklist 22-11 Notes

1. Defendant (surety) contests forfeiture and requests a trial (right to a bench trial):

Defendant has right to a bench trial. Unlike criminal cases, defendant is not entitled to jury trial and must request jury trial if he or she wants one. The rules that govern a jury trial also govern trials by the court in so far as they are applicable. Rule 262, R.Civ.P.

a. Clerk sets case on scire facias trial docket. b. Clerk gives defendant (surety) 45 days notice

of trial setting.

2. If defendant (surety) requests a jury trial, it must be in

writing and filed with clerk within a reasonable time before the date set for a non-jury trial, but not less than 30 days before the bench trial setting:

b. Defendant (surety) must pay a fee unless

defendant submits an affidavit of indigence in lieu of paying fee (check with judge to determine if fee is $5.00 or $10.00.).

a. Clerk date stamps request and files with case.

Rule 216, R.Civ.P. The clerk is required to keep a docket styled “The Jury Docket,” which shall be entered in the order of the cases in which jury fees have been paid or an affidavit of indigence in lieu of the fee has been filed. Rule 218, R.Civ.P.

c. If fee is paid or affidavit is submitted, clerk sets case on scire facias jury trial docket.

(1) Clerk gives defendant (surety) notice

of trial setting.

Rules 218 and 217, R.Civ.P.

(2) Clerk enters case on jury docket. d. If fee is not paid, clerk notifies judge; judge

2007 page 169


may deny jury trial. e. Judge orders clerk, to summon a jury (jury is

summoned in the same manner as any other jury trial in municipal court.

3. Trial Proceedings:

a. Both parties (defendants and State) may question the jurors. Both parties may strike three jurors each (preemptory challenges).

b. After the preemptory challenges are given to

judge, clerk must call off the first six names on the lists that have not been struck. These persons serve on the jury.

Defendant may challenge array (if sustained, jury discharged and judge orders someone other than the person who summoned first jury to summon another jury). Rules 221 and 222, R.Civ.P.

4. The State’s case:

• Complaint from original criminal case;

• The docket entry and indication of forfeiture made by the judge on the day when the defendant failed to appear;

• The judgment nisi.

a. The State (prosecutor) may ask the court to take judicial notice of the bond and judgment nisi.

b. The judge will take judicial notice of the bond and judgment nisi unless the defendant (principal or surety) has filed a sworn answer challenging the bond’s validity. If sworn answer filed, the State must establish required predicate to introduce bond.

• The bond (and power of attorney if any);

• The affidavit of the bailiff or person who called the name outside the courtroom; and

c. When the validity of the bond is challenged, the judge cannot take judicial notice of the bond. The State must present evidence that the bond is:

• The one submitted by the defendant; • Received by the court; • The court has taken proper care of the

bond; and • The bond is not more burdensome than

required by law.

page 170 2007


d. The State rests.

5. The defendant’s case.

(1) Bond is not valid (This defense

requires defendant to have on filed with the court a verified answer.). • Bond not valid as to principal or

surety;

a. The defendant (principal or surety) produces evidence of exoneration from liability under one of the following causes:

• Defendant did not execute bond (must be verified by affidavit); or

• Bond more burdensome than statute requirements.

(2) Defendant (principal) died before

forfeiture was taken. (3) Defendant (principal) was sick or

prevented by some uncontrollable circumstance from appearing. (This cause shall not be deemed sufficient to exonerate the principal and sureties, if any, unless the principal appeared before final judgment on the bond to answer the accusation against him or her, or show sufficient cause for not appearing as required.)

(4) The incarceration of the principal in any jurisdiction in the United States at the time of or not later than the 180th day after the date of the principal’s failure to appear in court.

The judgment nisi is made final. TMCEC FORMS: FINAL JUDGMENT: CASH OR PERSONAL RECOGNIZANCE

b. Defense rests.

6. The powers of the court.

a. No exoneration—forfeiture granted for the State; clerk prepares judgment for judge’s signature.

BOND—FINDING FOR STATE or FINAL JUDGMENT: SURETY BOND—FINDING

FOR STATE.

2007 page 171


b. Exoneration—bond not valid and/or binding:

(1) Judge enters dismissal of forfeiture if exoneration is found. Judge may order dismissal with or without costs.

(2) Clerk prepares dismissal judgment according to judge’s orders.

e. The principal is incarcerated in any

jurisdiction at the time or not later than the 180th day after the date of the principal’s failure to appear in court.

Principal must appear before final judgment or show cause for not appearing.

c. Principal died before date bond forfeited. d. Sickness or principal or uncontrollable

circumstances through no fault of principal caused principal’s failure to appear.

If principal not liable, everyone exonerated. If principal liable and one or more sureties, if any, liable, then only non-liable sureties exonerated.

TMCEC FORMS: DISMISSAL AND REINSTATEMENT OF BOND, or MOTION AND ORDER OF DISMISSAL WITH COSTS, or MOTION AND ORDER OF DISMISSAL WITHOUT COSTS.

If exoneration is found, court enters exoneration order. Court may order dismissal with or without costs. Clerk prepares judgment according to judge’s order.

7. Remittitur is required if the defendant or the sureties shows one of the following:

a. The defendant has been released on new

bond; or

b. The case for which the bond was given is dismissed.

8. Remittitur is permitted: a. For other good cause shown and before entry

of a final judgment against the bond.

Interest accrues on the bond amount from the date of the forfeiture in the same manner and at the same rate as provided for the accrual of prejudgment interest in civil cases.

b. The judge may remit all or part of the amount of the bond after deducting the costs of court and any reasonable and necessary costs for the return of the principal, and the interest accrued on the bond amount.

page 172 2007


L. Judgments Checklist 22-12 Notes

1. Default judgment—defendant(s) has been properly served, but fails to answer:

a. Clerk sets case on non-contested scire facias

docket.

b. Clerk notes on scire facias docket that citation

with the officer’s return has been on file in the clerk’s office for at least 10 days, exclusive of the date of the filing and the date of judgment.

Prosecutor must submit an affidavit to the court that defendant is not in the military nor has been a member of the military in the last 60 days. The court must have this information before granting a default judgment. Servicemembers Civil Relief Act (2003). The Department of Defense provides a website for government agencies to check military status: dmdc.osd.mil/udpdri/owa/sscra.page

c. Clerk notes that affidavit of defendant’s non-military service from prosecutor is in file.

d. State moves for default judgment:

.

Proof of service of the citation includes the following:

b. Certified mail with green card signed by:

(3) Registered agent (surety is a corporation)

c. Personal service by peace officer (Proof of service on file at least 10 days, exclusive of the date of filing and the date of judgment for every defendant; or

(1) Judge determines that:

(a) the citation was properly served.

a. Verified waiver

(1) Defendant/surety (2) State Board of Insurance (surety is corporation)

(4) Executor, administrator heirs (surety is deceased); or

d. Publication verification.

2007 page 173


(b) That the time has expired for

answer for every defendant.

e. State prepares default judgment for judge’s signature.


f. State certifies the address of the parties against

whom the default is taken. g. On day of scire facias docket setting, state

presents judgment for judge’s signature.

Wait Approximately 40 days for every defendant. TMCEC FORMS: FINAL JUDGMENT: CASH OR PERSONAL RECOGNIZANCE BOND—FINDING FOR STATE or FINAL JUDGMENT: SURETY BOND—FINDING FOR STATE.

h. Judge signs judgment and clerk notes order on

scire facias docket.

i. State certifies in writing the last known

mailing address of the surety: (1) Clerk files certificate with the case.

(3) Clerk notes on scire facias docket date that the notice was mailed.

(2) Clerk mails written notice of the

default judgment to surety.

2. Default judgment - defendant fails to appear at trial. a. Follow steps for default judgment noted

above.

3. Defendant appears at trial - court exonerates defendant.

a. Defendant presented evidence of a cause

under Article 22.13, C.C.P. b. Judge signs order dismissing bond forfeiture:

(1) Judge may dismiss with or without costs or reinstate bond.

(2) Clerk notes order on scire facias

docket.

See CHECKLIST 22-11.

TMCEC FORMS: MOTION AND ORDER OF DISMISSAL WITH COSTS or MOTION AND ORDER OF DISMISSAL WITHOUT COSTS.

page 174 2007


4. Judgment for State (no sufficient cause for defendant’s

failure to appear). a. Defendant failed to present evidence of a

sufficient cause under Article 22.13, C.C.P.

b. Judge signs a final judgment for State.

c. Judge orders bond collected by execution as in civil actions.

d. Clerk notes judgment and execution order on docket.

CHECKLIST 22-11.

TMCEC FORMS: FINAL JUDGMENT: CASH OR PERSONAL RECOGNIZANCE BOND—FINDING FOR STATE or FINAL JUDGMENT: SURETY BOND—FINDING FOR STATE.

e. State certifies in writing the last known mailing address of the surety:

(1) Clerk files certificate with the case file.

(2) Clerk mails written notice of the

default judgment to surety.

(3) Clerk notes on scire facias docket the date that the notice was mailed.

5. Summary judgment (usually filed by the State):

a. State files summary judgment with court.

Party requesting must file and serve the motion and supporting affidavit at least 21 days before the time specified for a hearing. (A summary judgment is a motion filed when either the State or the defendant believes that there is no genuine issue of material fact and that the party who filed the motion is entitled to prevail as a matter of law. Rule 166a, R.Civ.P.)

b. If opposing party files affidavits on motion,

clerk accepts, provides copies to the State, and files with case.

Opposing affidavits must be file not later than seven (7) days prior to hearing.

c. The judge reviews case file and affidavits. No

oral testimony is heard. d. If judge grants motion for summary judgment,

State prepares judgment for judge’s signature and judge signs.

2007 page 175


(1) Clerk enters judgment on scire facias

docket.

(3) Clerk files certificate with case.

(2) State certifies in writing the last known mailing address of the surety.

(4) Clerk mails written notice of the summary judgment to surety.

6. Agreed judgment - state and defense agree to an amount less than the bond amount and submit recommendation to the court.

Applies to cities situated in counties that have a bail bond board; or if no bail bond board, the city is situation in a county of at least 110,000 in population.

(5) Clerk notes on scire facias docket

date that the notice was mailed. e. If judge denies motion for summary judgment,

clerk sets the case on the scire facias trial docket.

a. If judge grants motion, State prepares

judgment for judge’s signature and judge signs judgment:

Bond Forfeiture Trial CHECKLIST 22-11.

(2) State certifies in writing the last

known mailing address of the surety.

(3) Certificate is filed with the case.

(4) Clerk mails written notice of the agreed judgment to surety.

TMCEC FORM: AGREED FINAL JUDGMENT.

(1) Clerk enters judgment on scire facias docket.

(5) Clerk notes on scire facias docket the date that the notice was mailed.

7. Clerical mistakes in judgment record. Notice of motion to correct mistake served on interested parties:

a. Clerk will serve notice by delivering a copy to duly authorized agent of party, or attorney of record either in person or by agent or by courier receipted delivery; by certified or register mail to party’s last known address; by telephonic document transfer to the

page 176 2007


recipient’s current telecopier number; or by

such other manner as the judge in his or her discretion may direct.

c. Judge corrects mistake in open court.

b. The clerk, upon receiving a document showing compliance of the service of notice, should:

(1) Date stamps the document, and

(2) Files it with the bond forfeiture case.

d. Clerk notes correction on scire facias docket.

Prima facie evidence of service is a certificate by a party or an attorney of record, the return of an officer, or the affidavit of any person showing service of notice.

M. New Trial


1. Motion for new trial - Defendant and/or surety requests new trial within 30 days after final judgment has been signed.

a. Clerk receives request (motion) which is made in writing.

b. Clerk gives motion to the judge.

Motion extends time for issuance of execution up to 105 days. If the judge never signs motion for new trial, it will be deemed overruled 75 days after the original judgment was signed. The same rule applies whenever a final judgment is signed.

N. Bill of Review Checklist 22-14 Notes

1. Defense may present a bill of review not later than two (2) years after the date of a final judgment.

a. The bill of review requests, on equitable

grounds, that the final judgment and all or part of the bond be remitted to the surety.

b. Clerk will give bill to judge.

c. Court may deny request.

d. The judge can grant the bill in part or in whole. If the judge grants the bill of review

2007 page 177


and orders that the judgment be reformed and the amount $____ be returned to the defendant, clerk will note the order on the scire facias docket.

O. Bond Forfeitures under Article 45.044, C.C.P. Checklist 22-15 Notes

1. Ask the defendant to acknowledge his or her presence when the defendant’s name is called. When the defendant fails to answer, the judge orders the bailiff or another to call the defendant’s name distinctly at the courtroom door:

a. Clerk verifies if a cash bond posted and that

defendant signed a conditional plea of nolo contendere and waiver of jury trial.

b. Judge may forfeit the bond for fine and court

costs when the defendant fails to appear.

c. Clerk completes judgment for judge’s signature.

2. Notify the defendant.

b. Clerk sends notices by regular mail at the

address the court has on file for the defendant.

3. Defendant:

a. Makes a request for a new trial within 10 days, the judge must grant the motion and allows the defendant to withdraw his or conditional plea of nolo contendere and waiver of jury trial.

(1) The bond is reinstated; and

Amount of time enlarged by “Mail Box Rule. Article 45.013, C.C.P. Mail Box Rule provides that a document is timely filed with the clerk if it is mailed first class mail on or before the due date and received by the court within 10 days after the due date. “Day” does not include Saturday, Sunday or legal holidays.

a. Court required to notify defendant of court action and the right to request a new trial.

(2) The case is set for trial. b. Does not make a timely motion for a new trial,

the judgment and forfeiture becomes final.

page 178 2007


(1) Jail credit, if any, is granted. (2) Clerk receipts bond for payment of

fine and court costs, less the jail credit amount.

(3) Clerk refunds any balance, if any after jail credit given.

(4) If the offense is a traffic offense, the court reports the conviction to the Department of Public Safety.

CHECKLIST 23-4.

2007 page 179



page 180 2007


CHAPTER 23 DPS REPORTING

A. Alcoholic Beverage Code Courts are required to report to the Department of Public Safety (DPS) certain information regarding Alcoholic Beverage Code offenses committed by minors. The Alcoholic Beverage Code defines a minor as a person under the age of 21.

The information maintained by DPS regarding Alcoholic Beverage Code offenses reported by courts is confidential and may not be disclosed, except to law enforcement agencies and to courts to enable them to carry out their official duties. (Sections 106.117(c) and (d), A.B.C.)

Notes Checklist 23-1

1. The clerk is required to report the following on Alcoholic Beverage Code offenses committed by a minor:

a. Convictions:

(1) Orders of driver’s license suspension or denial of issuance of driver’s license;

(2) Failure to complete the alcohol awareness program or community service (Judge required to order driver’s license suspended or deny issuance for a period not to exceed 180 days. Clerk reports order.); and

(3) Failure to pay fine and/or court costs or violation of a court order (only on minors under the age of 17 and only after a contempt hearing under Article 45.050, C.C.P.;

b. Failure to appear only on minors under the age of 17;

c. Orders of deferred disposition for Alcoholic Beverage Code offenses involving minors; and

d. Acquittals of driving under the influence of an

alcoholic beverage.

2007 page 181


2. Upon conviction, the judge is required to order in the judgment, the suspension or denial of issuance of the minor’s driver’s license for the following Alcoholic Beverage Code offenses:

Section 106.02 a. Purchase of Alcohol by a Minor;

b. Attempt to Purchase Alcohol by a Minor; c. Consumption of Alcohol by a Minor; d. Possession of Alcohol by a Minor; and

Section 106.05

e. Misrepresentation of Age by a Minor.

Section 106.025

Section 106.04

Section 106.07

a. Clerk completes the DIC-15:

Municipal court may not have jurisdiction over the third or subsequent offenses when there are two (2) prior convictions:

b. 17 years to 20, goes to county court.

3. To report suspension:

(1) Suspension begins 11 days after judge

signs the judgment.

(2) Clerk indicates suspension period from judgment:

(a) 30 days for a first conviction;

or

(b) 60 days for a second conviction.

(3) Clerk indicates the offense

committed.

TMCEC FORMS: GOVERNMENT & AGENCY FORMS – DEPT. OF PUBLIC SAFETY – NOTICE OF CONVICTION AND SUSPENSION/DISQUALIFICATION: DIC-15.

Note: The judge can only order the 60-day suspension if the complaint is enhanced to allege that there was a prior conviction or citation notes that offense is a second or subsequent offense.

a. 16 years or under, goes to juvenile court unless court has juvenile case manager.

page 182 2007


4. The judge is required to order in the judgment of all

offenses involving minors charged with Alcoholic Beverage Code offenses that the defendant attend an alcohol awareness program and complete a certain number of community service hours for the following offenses:

a. Purchase of Alcohol by a Minor;

Section 106.025

b. Attempt to Purchase Alcohol by a Minor;

Section 106.02

c. Consumption of Alcohol by a Minor;

f. Misrepresentation of Age by a Minor.

Section106.041

Section 106.07

d. Driving under the Influence of Alcohol by

Minor (DUI);

e. Possession of Alcohol by a Minor; and

Section 106.04

Section106.05

5. The judge is required to order DPS to suspend or deny issuance of driver’s license for a period of time not to exceed six (6) months if the defendant fails to show evidence of completion of the alcohol awareness program or the performance of the community service:

a. Clerk completes the DIC-15 according to

court’s order: (1) Clerk indicates suspension period.

(2) Clerk indicates the offense committed:

(b) Failure to complete community service.


TMCEC FORM: GOVERNMENT & AGENCY FORMS – DEPT. OF PUBLIC SAFETY – NOTICE OF CONVICTION AND SUSPENSION/DISQUALIFICATION: DIC-15.

(a) Failure to complete alcohol

awareness program; or

2007 page 183


6. When a person under the age of 17 fails to pay a fine

and/or court costs or violates a court order: a. The clerk prepares case for a contempt

hearing.

(a) Clerk completes the DIC 81 form.

(b) Clerk checks that defendant failed to pay.

(1) If the court retains jurisdiction of the

juvenile and finds the juvenile in contempt, the judge may order DPS to suspend or deny issuance of the driver’s license as a sanction of the contempt.

i. This report of the

sanction must be submitted within two years from the failure to pay.

ii. The suspension or

denial of a driver’s license is effective until the child fully complies and the clerk notifies DPS of the compliance.

Article 45.050(c)(2), C.C.P. Sections 521.201(8), 521.294(6), and 521.3451, T.C. TMCEC FORM: GOVERNMENT & AGENCY FORMS – NOTICE OF VIOLATION NOTICE OF RESTORATION MINOR’S LICENSE ONLY FAILURE TO APPEAR FAILURE TO PAY FINE - DIC 81. DPS shall suspend or deny issuance of a driver’s license until the child fully complies. A minor whose license is suspended or revoked under this statute must pay a $100 reinstatement fee to DPS. Section 521.313, T.C.

7. If a defendant under the age of 17 fails to appear for a fine-only offense, the court may order DPS to suspend or deny issuance of a driver’s license.

a. Clerk prepares the DIC 81 form: (1) The report must be submitted within

two years from the failure to appear. (2) The suspension or denial of a driver’s

license is effective until the child fully complies and the court notifies DPS of the compliance.

Sections 521.201(8) and 521.294(6), T.C. TMCEC FORM: GOVERNMENT & AGENCY FORMS – NOTICE OF VIOLATION NOTICE OF RESTORATION MINOR’S LICENSE ONLY FAILURE TO APPEAR FAILURE TO PAY FINE - DIC 81.

page 184 2007


Sections 521.201(8), 521.294(6), T.C.

DPS shall suspend or deny issuance of a driver’s license until the child fully complies.

A minor whose license is suspended or revoked under this statute must pay a $100 reinstatement fee to DPS. (Section 521.313, T.C)

(3) Clerk checks on the form that defendant failed to appear.

8. Court must report to DPS an Alcoholic Beverage

Code offense deferred under Article 45.051, C.C.P.

a. Clerk reports deferral to DPS when the court grants the deferred.

(1) If the defendant fails to complete the alcohol awareness program under the deferral, the judge is required to order the suspension or denial of issuance of the defendant’s driver’s license.

(2) Clerk reports suspension to DPS on

DPS form DIC-15.

Section 106.117(a)(3), A.B.C.

If the defendant fails to complete the alcohol awareness program, the community service, or any terms of the deferral, the court must enter a guilty judgment of conviction in the case. If the defendant failed to complete terms other than the alcohol awareness program or community service, the court will order DPS to suspend or deny suspension of the defendant’s driver’s license for a period not to exceed 30 days for a first offense. If the offense is filed as a second offense—60 days. TMCEC FORM: GOVERNMENT & AGENCY FORMS – DEPT. OF PUBLIC SAFETY – NOTICE OF CONVICTION AND SUSPENSION/DISQUALIFICATION: DIC-15.

9. Court is required to report the conviction of acquittal of driving under the influence of alcohol (DUI) by a minor to DPS.

a. Clerk uses the DIC-5 form to report court’s

order or may report by DPS code. b. Court does not order DPS to suspend or deny

issuance of driver’s license.

Section 106.117(a)(4), A.B.C.


2007 page 185


B. Penal Code Checklist 23-2 Notes

1. When a person is 17 years of age and under the age of 21 and convicted of the offense of public intoxication:

a. Judge required to order defendant’s driver’s

license suspended or deny issuance in judgment.

b. Clerk completes the DIC-15: (1) Suspension begins 11 days after

judgment. (2) Clerk indicates suspension period: (a) 30 days for a first conviction;

or (b) 60 days for a second

conviction. (3) Clerk indicates the offense committed.

Section 49.02(e), P.C. Note: Municipal court does not have jurisdiction over a person under the age of 17 charged with public intoxication. Section 51.03(f), F.C. TMCEC FORM: GOVERNMENT & AGENCY FORMS – DEPT. OF PUBLIC SAFETY – NOTICE OF CONVICTION AND SUSPENSION/DISQUALIFICATION: DIC-15. Note: The judge can only order the 60-day suspension if the complaint is enhanced to allege that there was a prior conviction. Municipal court may not have jurisdiction over the third or subsequent offenses when there are two prior convictions: a. 16 years or under, goes to

juvenile court unless court has juvenile case manager.

b. 17 years to 20, goes to county

court.

2. When the defendant does not complete the alcohol awareness program or perform the community service, the court must order DPS to suspend or deny issuance of a driver’s license for a period not to exceed six months for first time offense:

a. Clerk completes the DIC-15 according to the

court’s order: (1) Clerk indicates suspension period. (2) Clerk indicates the offense

committed:



page 186 2007


(a) Failure to complete alcohol

awareness program; or (b) Failure to complete

community service.

3. The penal offense of possession of alcoholic beverage in motor vehicle in Section 49.031, P.C., is commonly called “open container law.” Although this offense is in the Penal Code, it is considered a traffic offense for reporting purposes to DPS.

a. Clerk reports convictions of this offense to

DPS after the judge signs the judgment: (1) If court reports electronically use DPS

Code 3323. (2) If court reports manually use the DR-

18.

TMCEC FORM: GOVERNMENT & AGENCY FORMS – NOTICE OF FINAL CONVICTION AND SUSPENSION/DISQUALIFICATION – DR-18.

4. The court must report all convictions of theft of

gasoline: a. Clerk reports in the same manner as traffic

convictions and should be reported as soon as possible after the conviction (after judgment signed). If a court reports manually, the court can submit the report by one of the following methods:

(1) If court reports electronically use DPS

Code 3206. (2) If court reports manually use the DR-

18.

Section 31.03, P.C. After DPS receives a report of a second conviction, DPS will automatically suspend the defendant’s driver’s license. Section 521.349, T.C. Section 521.349 of the Transportation Code authorizes DPS to automatically suspend the defendant’s driver’s license for 180 days from the date of final conviction when there is a special affirmative finding. TMCEC FORM: GOVERNMENT & AGENCY FORMS – NOTICE OF FINAL CONVICTION AND SUSPENSION/DISQUALIFICATION – DR-18.

2007 page 187


5. If a person under the age of 17 fails to appear for a

fine-only offense, the judge may order DPS to suspend or deny issuance of a driver’s license:

Sections 521.201(8) and 521.294(6), T.C. DPS shall revoke or deny issuance of the driver’s license of a person who is at least age 14, but younger than age 17, for failure to appear when reported by a court.

a. Clerk completes the DIC-81 form: (1) This report must be submitted within

two (2) years from the failure to appear.

(2) The suspension or denial of a driver’s

license is effective until the child fully complies and the clerk notifies DPS of the compliance.

(3) Clerk checks that defendant failed to

appear.

TMCEC FORM: GOVERNMENT & AGENCY FORMS – NOTICE OF VIOLATION NOTICE OF RESTORATION MINOR’S LICENSE ONLY FAILURE TO APPEAR FAILURE TO PAY FINE – DIC-81. DPS shall suspend or deny issuance of a driver’s license until the child fully complies. A minor whose license is suspended or revoked under this statute must pay a $100 reinstatement fee to DPS. Section 521.313, T.C.


and/or court costs or violates a court order, a. The clerk prepares case for a contempt

hearing.

(1) If the court retains jurisdiction of the juvenile and finds the juvenile in contempt, the judge may order DPS to suspend or deny issuance of the driver’s license as a sanction of the contempt.

Article 45.050(c)(2), C.C.P.

TMCEC FORM: GOVERNMENT & AGENCY FORMS – NOTICE OF VIOLATION NOTICE OF RESTORATION MINOR’S LICENSE ONLY FAILURE TO APPEAR FAILURE TO PAY FINE – DIC-81.

(a) Clerk completes the DIC-81

form.

i. This report must be submitted within two years from the failure to pay.

Sections 521.201(8), 521.294(6), and 521.3451, T.C.

DPS shall suspend or deny issuance

page 188 2007




(b) Clerk checks that defendant

failed to pay.

of a driver’s license until the child fully complies.

A minor whose license is suspended or revoked under this statute must pay a $100 reinstatement fee to DPS. Section 521.313, T.C.

C. Health and Safety Code The court must order a person under the age of 18 convicted of a tobacco offense to complete a tobacco awareness program. (Section 161.253, H.S.C.) Tobacco offenses include possession, purchase, consumption, or receipt of cigarettes or tobacco products. If the defendant fails to complete the tobacco awareness program or tobacco related community service, the judge is required to order DPS to suspend or deny issuance of a driver’s license for a period not to exceed 180 days.


1. If the defendant does not complete the tobacco awareness program, the judge must order DPS to suspend or deny issuance of a driver’s license or permit.

a. Clerk completes the DIC-15 form for failure to complete the tobacco awareness program according to the judge’s order.


b. Clerk indicates on form the suspension period

from judge’s order (not to exceed 180 days).


2. If a person under the age of 17 fails to appear for a

fine-only offense, the judge may order DPS to suspend or deny issuance of a driver’s license:


DPS shall revoke or deny issuance of the driver’s license of a person who is at least age 14, but younger than age 17, for failure to appear when reported by a court.

a. Clerk completes the DIC-81 form: (1) This report must be submitted within


Sections 521.201(8) and 521.294(6), T.C.

TMCEC FORMS: GOVERNMENT & AGENCY FORMS – NOTICE OF VIOLATION NOTICE OF RESTORATION MINOR’S LICENSE ONLY FAILURE TO

2007 page 189


license is effective until the child

fully complies and the clerk notifies DPS of the compliance.


appear.

APPEAR FAILURE TO PAY FINE – DIC-81. DPS shall suspend or deny issuance of a driver’s license until the child fully complies. A minor whose license is suspended or revoked under this statute must pay a $100 reinstatement fee to DPS. Section 521.313, T.C.


and/or court costs or violates a court order, a. The clerk prepares case for a contempt

hearing. (1) If the court retains jurisdiction of the


ii. The suspension or denial of a driver’s license is effective until the child fully complies and the clerk notifies DPS of the compliance.

DPS shall suspend or deny issuance of a driver’s license until the child fully complies.


(a) Clerk completes the DIC-81

form.



failed to pay.

Article 45.050(c)(2), C.C.P.

Sections 521.201(8), 521.294(6), and 521.3451, T.C. TMCEC FORMS: GOVERNMENT & AGENCY FORMS – NOTICE OF VIOLATION NOTICE OF RESTORATION MINOR’S LICENSE ONLY FAILURE TO APPEAR FAILURE TO PAY FINE – DIC-81.

D. Transportation Code Each magistrate or judge of a non-record court and each clerk of a court of record must maintain records

page 190 2007


of cases involving a violation of laws regulating the operation of vehicles on highways. (Section 543.201, T.C.) Although judges in courts of non-record are required to keep records of defendants charged with traffic violations, judges usually delegated this duty to clerks because there is no discretion in keeping the record.


1. Clerks are required to report the following information on all traffic violations:

a. Convictions (Section 543.201, T.C.); b. Forfeiture of bail (Sections 543.201 and

521.347(b) and (c), T.C.); c. Convictions under Section 521.025, T.C.

(Section 521.025(e), T.C.); d. Convictions under Section 521.453, T.C.

(Section 521.347(b), T.C.); e. Convictions under Section 621.506 (Section

621.506(d), T.C.); f. Driving safety course or motorcycle operator

training course completions;

Article 45.050, C.C.P. and Section 521.3451, T.C.

g. Teen court completions; h. Minor’s failure to appear; i. Minor’s failure to pay or violation of a court

order; and j. Defendant’s failure to comply with the

Nonresident Violator Compact.

Article 45.0511(l), C.C.P.

Article 45.052(d), C.C.P. Section 521.3452, T.C.

Chapter 703, T.C.

2. Time Required to Report - Section 543.203, T.C., requires judges or clerks to submit to DPS a record of conviction or forfeiture on the traffic cases no later than the 30th day after the date of the conviction or forfeiture. The court counts the 30 days starting with the day after the date of the judgment or final judgment of a bond forfeiture was entered (the day the judgment was signed). (Section 311.014, G.C.):

Section 543.201, T.C., requires each magistrate or judge of a non-record municipal court and the clerk of municipal courts of record to keep records of each case in which a person is charged with a violation of law regulating the operation of vehicles on highways.

a. Report required to be submitted to DPS by

clerk must contain the date of conviction or forfeiture of bail:

Section 543.203, T.C. If conviction is for speeding 10

2007 page 191


(1) Clerk can report electronically; or (2) Clerk can report manually use: (a) The DR-18 form, (b) A legible duplicate copy of

the citation, or

(c) A computer list.

TMCEC FORM: GOVERNMENT & AGENCY FORMS – NOTICE OF FINAL CONVICTION AND SUSPENSION/DISQUALIFICATION – DR-18.

If a judge, magistrate, or clerk fails to submit a traffic conviction report to DPS, he or she may be removed from office. Section 543.206, T.C.

percent above posted limit, court must report using DPS code 3586; If conviction is for speeding occurred in a school zone, court must report using DPS code 3596.

3. Convictions under Section 521.453, T.C., result in

DPS automatically suspending a person convicted of this offense upon receiving a report of conviction from the court:

a. Clerk reports this conviction on DPS form

DIC-21. b. Judge may require the surrender to the court

all driver’s licenses held by the person: (1) If surrendered, clerk must send the

license with a report of the conviction or final bond forfeiture to DPS by the 10th day after the license is surrendered Section 521.347, T.C.

Section 521.453, T.C. A person may not sell, manufacture, distribute, or possess a document that is deceptively similar to a driver’s license or a personal identification certificate issued by DPS unless the document displays the statement “NOT A GOVERNMENT DOCUMENT” diagonally printed clearly and indelibly on both the front and back of the document in solid red capital letters at least one-fourth inch in height. TMCEC FORM: GOVERNMENT & AGENCY FORMS – DEPT. OF PUBLIC SAFETY – NOTICE OF SUSPENSION – VIOLATION OF LICENSE OR CERTIFICATE PROVISION – DIC-21. This form is used to report any offense that carries an automatic driver’s license suspension upon conviction.

4. On a second or subsequent conviction the judge may

order the driver’s license of a person convicted of a second or subsequent offense:


TMCEC FORM: GOVERNMENT & AGENCY FORMS – DEPT. OF PUBLIC SAFETY – NOTICE OF CONVICTION AND

a. Clerk reports using the DIC-15 form. b. Clerk indicates suspension period on judge’s

page 192 2007


order (not longer that six (6) months). SUSPENSION/DISQUALIFICATION: DIC-15.

5. When the defendant completes the course and timely submits proof to the court, the judge must dismiss the case and report to DPS the date of completion of the course:

a. Judge signs dismissal judgment. b. Clerk reports the driving safety course

completion.

Article 45.0511, C.C.P. This may be done electronically or manually.

6. When the defendant completes a teen court program:

a. Judge signs dismissal judgment. b. Clerk reports the completion date of the teen

court program to DPS if offense was a traffic offense.

Article 45.052(d), C.C.P.

This may be done electronically or manually.

7. If a person under the age of 17 fails to appear for any fine-only offense, the court may order DPS to suspend or deny issuance of a driver’s license:

(1) This report must be submitted within


(2) The suspension or denial of a driver’s license is effective until the child fully complies and the clerk notifies DPS of the compliance.

(3) Clerk will check that defendant is a fail to appear.


a. Clerk completes the DIC-81 form:

Sections 521.201(8) and 521.294(6), T.C. DPS shall revoke or deny issuance of the driver’s license of a person who is at least age 14, but younger than age 17, for failure to appear when reported by a court. TMCEC FORM: GOVERNMENT & AGENCY FORMS – NOTICE OF VIOLATION NOTICE OF RESTORATION MINOR’S LICENSE ONLY FAILURE TO APPEAR FAILURE TO PAY FINE – DIC-81. DPS shall suspend or deny issuance of a driver’s license until the child fully complies.

8. When a person under the age of 17 fails to pay a fine and/or court costs or violates a court order,

2007 page 193


a. The clerk will prepare case for a contempt hearing.

(1) If the court retains jurisdiction of the


(a) Clerk completes the DIC 81 form.




(b) Clerk checks that defendant is

a failure to pay.

Article 45.050(c)(2), C.C.P. Sections 521.201(8), 521.294(6), and 521.3451, T.C. TMCEC FORM: GOVERNMENT & AGENCY FORMS – NOTICE OF VIOLATION NOTICE OF RESTORATION MINOR’S LICENSE ONLY FAILURE TO APPEAR FAILURE TO PAY FINE – DIC-81. DPS shall suspend or deny issuance of a driver’s license until the child fully complies.


9. Under the terms of the Nonresident Violator Compact of 1977, DPS must request driver’s license suspension of any resident of a member state who receives a citation for a traffic violation in Texas, fails to respond to the citation, and is reported to DPS by a court.

a. When an out-of-state violator fails to respond to a citation or to pay a fine for a violation, the clerk reports to DPS using the six-page Notice of Failure to Comply form:

DPS will notify the motorist’s home state of the non-compliance.

(1) Mail original, or first page, of form to

the defendant. Hold form in file for 15 days to await response from defendant;

The other members of the Compact may also request the suspension of the driver’s license of any Texas resident who fails to respond to a citation in the other state’s respective jurisdiction. (Chapter 703, T.C.) All states are members, except for Alaska, California, Michigan, Montana, Oregon, and Wisconsin. Contact DPS at (512) 424-2028 for information about where to order the form.

(2) If defendant fails to answer notice, mail second and third pages of the form to DPS. Hold fourth, fifth, and

Section 703.002, Article III, T.C., says that no action will be taken under the terms of the Nonresident Violator Compact for the following

page 194 2007


sixth pages of the notice in the court file.

b. Equipment violations;

h. Parking or standing violations; and

(3) When the defendant resolves the case; mail fourth page (defendant’s receipt) to defendant and fifth page (notice of withdrawal of suspension) to DPS.

b. Clerk must report within six months of after

the date on which the traffic citation was issued. Section 703.002, Article III(f), T.C.

violations: a. Moving traffic violations which alone carry a suspension;

c. Motor carrier violations; d. Lease law violations; e. Registration law violations; f. Offenses which mandate personal appearance; g. Size and weight limit violations;

i. Transportation of hazardous material violations.

10. Clerk will not report a traffic offense that was placed

on and complied with deferred disposition.

E. Education Code Checklist 23-5 Notes

1. The judge to order in addition to any other order under Article 45.054, DPS to suspend or deny issuance of a driver’s license or permit for the offense of failure to attend school:

a. Clerk completes the DIC-15 form: b. Clerk indicates on the DIC-15 the suspension

period that cannot exceed 365 days.

Article 45.054(f), C.C.P.



2. If a person under the age of 17 fails to appear for any fine-only offense, the court may order DPS to suspend or deny issuance of a driver’s license:

a. Clerk completes the DIC-81 form:

Sections 521.201(8) and 521.294(6), T.C.

(1) This report must be submitted

within two (2) years from the failure to appear.


DPS shall revoke or deny issuance of the driver’s license of a person who is at least age 14, but younger than age 17, for failure to appear when reported by a court.

2007 page 195


license is effective until the child fully complies and the clerk notifies DPS of the compliance.


appear.

TMCEC FORM: GOVERNMENT & AGENCY FORMS – NOTICE OF VIOLATION NOTICE OF RESTORATION MINOR’S LICENSE ONLY FAILURE TO APPEAR FAILURE TO PAY FINE – DIC-81. DPS shall suspend or deny issuance of a driver’s license until the child fully complies. A minor whose license is suspended or revoked under this statute must pay a $100 reinstatement fee to DPS. Section 521.313, T.C.


and/or court costs or violates a court order, a. The clerk will prepare case for a contempt

hearing. (1) If the court retains jurisdiction of the


(a) Clerk will complete the DIC

81 form. i. This report must be

submitted within two (2) years from the failure to pay.


denial of a driver’s license is effective until the child fully

Article 45.050(c)(2), C.C.P.

A minor whose license is suspended or revoked under this statute must

Sections 521.201(8), 521.294(6), and 521.3451, T.C. TMCEC FORM: GOVERNMENT & AGENCY FORMS – NOTICE OF VIOLATION NOTICE OF RESTORATION MINOR’S LICENSE ONLY FAILURE TO APPEAR FAILURE TO PAY FINE – DIC-81. DPS shall suspend or deny issuance of a driver’s license until the child fully complies.

complies and the

clerk notifies DPS of the compliance.


failed to pay.

pay a $100 reinstatement fee to DPS. Section 521.313, T.C.

page 196 2007


F. New Trial Checklist 23-6 Notes

1. When a defendant requests a new trial, the court does not report a conviction or order of driver’s license suspension or denial unless the defendant is not granted the new trial and does not appeal.

2. The clerk reports only if the defendant is convicted at

the second trial and does not appeal.

The report would be submitted in the same manner and use the same methods or forms as if no new trial had been granted.

G. Appeals

Checklist 23-7

Notes

1. When a defendant appeals his or her conviction, the municipal court does not report the conviction or driver’s license suspension because the municipal court judgment is not a final conviction.

a. In non-record courts, if the defendant is

convicted in the county court, the county court reports the conviction to DPS.

b. In municipal courts of record, if the judgment

is affirmed on appeal, then the municipal court reports the conviction.

2007 page 197


H. Chart of Forms Checklist 23-8 DIC-15 DIC-81 DR-18 DIC-21

Alcoholic Beverage Code

Chapter 106 (Minors under the age of 21)

• Convictions: driver’s license suspensions or denial of driver’s license (Section 106.071.A.B.C.). • Acquittals of DUI (Section 106.117(4), A.B.C.). • Orders of deferred disposition (Section

06.115(c) and (d),

106/117(3), A.B.C.). • Failure to complete alcohol awareness program: court must order suspension or denial of driver’s license (Section 106.115(c) and (d), A.B.C.). • Failure to complete community service: court must order suspension or denial of driver’s license (Section 1A.B.C.).

Under Age 17

• Failure to appear: DPS will suspend or deny issuance of driver’s license (Automatic suspension under Section 521.3452, T.C.). • Failure to pay: court conducts a contempt hearing under Article 45.050, C.C.P., and judge orders driver’s license suspended or denied issuance as a sanction of contempt; clerk notifies DPS of order.

Education Code

ol

icle

rt

ded not to exceed 365 days.

U

l

c Section

,

clerk notifies DPS of order.

Failure to Attend Scho(Section 25.094, E.C.) (Procedures in Art45.054(f), C.C.P.) Discretionary sanction: coumay order driver’s license suspen

nder Age 17

• Failure to appear: DPS wilsuspend or deny issuance of driver’s licenses (Automatisuspension under 521.3452, T.C.). • Failure to pay: court conducts a contempt hearing under Article 45.050, C.C.P.and judge orders driver’s license suspended or denied issuance as a sanction of contempt;

page 198 2007


DIC-15 DIC-81 DR-18 DIC-21

Health and Safety Code

Possession, Purchase, Consumption, or Receipt of Cigarettes or Tobacco Products by Minors—Under Age 18 (Section 161. 252, H.S.C.)

Failure to complete the tobacco awareness program or tobacco related community service: court must order DPS to suspend or deny issuance of driver’s license (Section 161.254, H.S.C).

Under Age 17

• Failure to appear: DPS will suspend or deny issuance of driver’s licenses (Automatic suspension under Section 521.3452, T.C.).

• Failure to pay: court conducts a contempt hearing under Article 45.050, C.C.P., and judge orders driver’s license suspended or denied issuance as a sanction of contempt; clerk notifies DPS of order.

Penal Code Public Intoxication (Age 17 and under age 21) Section 49.02(e), P.C.

ial of

denial of driver’s license.

• Failure to appear: DPS will suspend or deny issuance of driver’s license (Automatic suspension under Section

Under Age 17 • Motor Vehicle Fuel Theft (Section 31.03, P.C.) or if reporting electronically use DPS code 3206. • Convictions: driver’s

license suspensions or denial of driver’s license. • Open Container

(Section 49.031, P.C.) or if reporting electronically use DPS code 3323.

521.3452, T.C.). • Failure to pay: court conducts a contempt hearing under Article 45.050, C.C.P., and judge orders driver’s license suspended or denied issuance as a sanction of contempt; clerk notifies DPS of order.

• Orders of deferred disposition. • Failure to complete alcohol awareness program: court must order suspension or den

driver’s license. • Failure to complete community service: court must order suspension or

Transportation Code

Passing School Bus )

ed

ng on date of conviction.

Under Age 17

• Failure to appear: DPS will suspend or deny issuance of driver’s license (Automatic suspension under Section

,

clerk notifies DPS of order.

use back of

c

al

ity

n 543.201,

45.0511(c), C.C.P.)

under

.C. s

0

521.346, T.C.)

(Section 545.066(d), T.C.On second or subsequent conviction, court may orderdriver’s license suspendfor not longer than six months beginni

If not reporting electronically, can DR-18 or

Convictions of offenses Section 521.453, T(Driver’license suspension is not less than 9days or morethan one(1) year. (Section

itation.

• Report all traffic convictions and finforfeiture of bond including convictions and forfeitures of ctraffic ordinances (Sectio

521.3452, T.C.) • Failure to pay: court conducts a contempt hearing under Article 45.050, C.C.P.and judge orders driver’s license suspended or denied issuance as a sanction of contempt;

T.C.). • Dismissals of DSC or motorcycle safetycourse (Article

2007 page 199


I. Information Reported on Forms Checklist 23-9 Notes

1. DIC-15 - Clerk will complete information reported on the DIC-15 form including the following: • Name, date of birth, race, and gender; • Driver’s license number, identification number

or social security number; • Address; • Offense committed:

− For alcohol offenses, including public intoxication, the failure to complete the alcohol awareness program or community service;

− For tobacco offenses, the failure to complete the tobacco awareness program; or

− For the offense of failure to attend school, the driver’s license suspension as a sanction;

• Dates of the suspension: − In the case of a conviction of an alcohol

offense including public intoxication, since the suspension is automatically effective on the 11th day after judgment, report the 11th day after the judgment as the beginning date and report the ending date of the suspension as noted in the judgment;

− For second or subsequent offense of passing a school bus (court has option to suspend driver’s license as a sanction);

• Date of offense; • Cause number; and

− In the case of failure to complete an alcohol awareness program or community service for an alcohol offense, or a tobacco awareness program, report the suspension dates (not to exceed 180 days) noted in the court order; and

− In the case of failure to attend school, report the dates of the driver’s license suspension ordered by the court as a sanction.


page 200 2007


• Offense committed;

TMCEC FORM: GOVERNMENT & AGENCY FORMS – NOTICE OF VIOLATION NOTICE OF RESTORATION MINOR’S LICENSE ONLY FAILURE TO APPEAR FAILURE TO PAY FINE – DIC-81.

2. DIC-81 - Clerk will complete information reported on the DIC-81 form including the following: • Name, date of birth, race, and gender; • Driver’s license number, identification number,

or social security number; • Address;

• Date of offense; • Whether it is failure to appear, contempt for

failure to pay, or violation of a court order under Article 45.050, C.C.P.; and

• Upon final disposition, date of final disposition.

To report the failure to appear or contempt for failure to pay, or violation of a court order under Article 45.050, C.C.P., of a person under the age of 17, courts must use the DIC-81 form. If the defendant appears in court and complies with all court orders, courts use the same DIC-81 form to report the final disposition.

3. DR-21 - Clerk will complete information reported on the DIC-21 form including the following:

When a defendant is convicted of an offense charged under Section 521.453, T.C., The court must report this conviction to DPS on DPS form DIC-21. This form is used to report any offense that carries an automatic driver’s license suspension upon conviction.

• Name; • Address of defendant; • Social security number;

• Conviction date;

• Race; • Gender; • Offense committed; • Date offense committed;

• Beginning and ending dates of suspension [Court sets period of suspension of not less than 90 days or more than one year. If the court does not set the period, the department is required to suspend the license for one year. (Section 521.346, T.C.)];

• Name and title of person certifying information on report;

• Court address; • Docket number; and • City and county.

2007 page 201


4. DR-18 - Clerk will complete information reported on

the DIC-18 form including the following: • Name and address of the defendant; • Physical description, including race or ethnicity

(“Race or ethnicity” means a particular descent, such as Caucasian, African, Hispanic, Asian, or Native American descent.);

• Amount of fine or forfeiture of bail.

• That the vehicle was a commercial motor vehicle;

• Whether the vehicle was involved in the transporting of hazardous materials; and

• Date and nature of offense, including whether the offense was a serious traffic offense as defined in Section 522.003(25), T.C.

Section 543.202, T.C., requires a written record of a traffic conviction, including a conviction of the penal offense of possession of alcoholic beverage in motor vehicle under Section 49.031, or final forfeiture of a bond filed for a traffic offense be reported to DPS.

TMCEC FORM: GOVERNMENT & AGENCY FORMS – NOTICE OF FINAL CONVICTION AND SUSPENSION/DISQUALIFICATION - DR-18.

Section 543.202, T.C., requires the DR-18 report of traffic convictions of commercial drivers operating a commercial motor vehicle to contain additional information.

Serious traffic offenses arise from the driving of a commercial motor vehicle for excessive speeding over 15 mph or more; reckless driving; violations of state and local traffic laws other than parking, weight, or vehicle defect violations, arising in

• Date of birth; • Defendant’s driver’s license number, if any, and

type; • Whether the driver’s license is commercial

driver’s license; • Registration number of vehicle involved; • Offense;

− If conviction is for speeding, court must report if speeding is 10 percent above posted limit;

− If conviction is for no driver’s license, court must report if driver’s license is a class C, class B, class A, or a class M license;

• Whether a search of the vehicle was conducted and whether consent for the search was obtained;

• Date and nature of offense; • Date of hearing or trial; • Plea; • Judgment, whether bail was forfeited (final

forfeiture), the date of completion of a driving safety course, or date of completion of teen court; and

5. If commercial driver operating a commercial vehicle

continue: • Commercial driver’s license number and social

security number, if available;

page 202 2007


connection with a fatal accident;

improper or erratic lane change; or following too closely.

J. Addresses to Send Reports Checklist 23-10 Notes

1. Automated Reports

b. The e-mail address for submitting automated

reports to DPS is: www. [email protected].

a. Clerk send automated reports to: Texas Department of Public Safety Driver Records/Data Submission P.O. Box 4087 Austin, Texas 78773-0364

c. Clerk send manual reports to:

Texas Department of Public Safety Driver Records/Ticket Verification P.O. Box 4087 Austin, Texas 78773-0361 d. To correct an error, clerk send correction

to the above address or call one of the following telephone numbers: 512/424-2031; 512/424-3545; or 512/424-5988.

Error resolution can be done by telephone, except for the offense of failure to maintain financial responsibility. For that offense, DPS must have the correction in writing.

Notes

K. City Contracts Checklist 23-11

1. Cities may contract with DPS to deny driver’s license renewal to a person who fails to appear, fails to pay, or fails to satisfy the judgment in a manner ordered by the court. (Chapter 706, T.C.) Offenses that may not be reported are traffic offenses with a penalty of more than $1,000. If a city enters into an agreement with DPS:

a. The citation for a violation of a traffic law

must provide a written warning that tells the violator if he or she fails to appear in court as

The warning, which may be printed on the citation, is in addition to any

2007 page 203


provided by law for the prosecution of the

offense, fails to pay, or fails to satisfy a judgment ordering the payment of a fine and costs in the manner ordered by the court, he or she may be denied driver’s license renewal.

b. Clerk is required to collect an additional $30

fee from defendants on all offenses reported unless the defendant is acquitted of the offense.

c. When offense paid, court shall notify DPS

that there is no cause to continue to deny renewal of the driver’s license.

other warning required by law. The city must report yearly on a form approved by the Comptroller to the Comptroller and DPS the amount of funds received and disbursed. • State gets $20.00; • OmniBase gets $6.00; and • City keeps $4.00. State portion is remitted quarterly.

2. Home-rule cities may enter into a contract with the

county assessor-collector or the Texas Department of Transportation to deny motor vehicle registration to an owner who has an outstanding warrant for failure to appear or failure to pay a fine involving a traffic offense that has a possible maximum fine of $200:

a. Clerk notifies the county or the Texas

Department of Transportation of the failure to appear or failure to pay.

b. Upon receiving notice of the following from

the clerk, the county must register the defendant’s vehicle:

(1) The entry of a judgment and payment

of the fine and all court costs; (2) Perfection of an appeal of the case for

which the arrest warrant was issued; or

(3) Dismissal of the charge for which the

arrest warrant was issued

Chapter 702 of the Transportation Code. A peace officer issuing a citation must give notice to the violator of the consequences of his or her failure to appear or failure to pay. The warning may be on the citation or be a separate notice. The warning must state that if the person fails to appear in court as provided by law for the prosecution of the offense or fails to pay a fine for the violation, the person might not be permitted to register a motor vehicle in this state. The court may not assess a fee for reporting a defendant’s failure to appear or pay under this contract.

The statute does not provide for the defendant to pay any additional fees when a city enters into this type of contract.

a. Clerk notifies collection agency when: (1) Offense must be 60 days past due;

3. Cities may contract with a collection agency for collection services.

Article 103.0031, C.C.P. The fee does not apply if a case is dismissed, the defendant is acquitted, or to any part of the fine or cost if a defendant is discharged by jail credit or community service.

page 204 2007


(2) Contracts with a public or private vendor or attorney must specify a 30 percent collection fee;

(3) Offense that was committed before

June 18, 2003.

b. Clerk notifies collection agency when case is disposed.

However, if a defendant makes any partial payment, the court must calculate the amount of the collection fee due. The vendor is paid its 30 percent, then the money is allocated on a pro-rata basis to the State and local costs, and if any money is left, it goes toward the fine. [Attorney General Opinion GA-0147, (2004)]

2007 page 205



page 206 2007


CHAPTER 24 ADMINISTRATIVE HEARINGS The Municipal Court has jurisdiction of administrative hearings. The hearings may include: property hearings, animal cruelty hearings, junk vehicle abatement, public nuisance abatement, appeals from dangerous/vicious animal hearings or other hearings established by your city charter/ordinances.

A. Property Hearings: Disposition of Stolen Property The municipal court has jurisdiction over the disposition of stolen property. Chapter 47, C.C.P. The property can not be released until the judge’s decision is rendered. Chapter 47 of the Code of Criminal Procedure governs the disposition of stolen property. Except in instances where a peace officer comes into property governed by the Texas Pawnshop, Act. Chapter 371, F.C. An officer who has custody of property alleged to have been stolen must hold it if the property ownership is contested or disputed, Article 47.01(a), C.C.P. When an officer seizes property allegedly stolen, the officer is required to immediately file a schedule with the court having jurisdiction of the case describing the property seized and its estimated value, Article 47.03, Code of Criminal Procedure. The schedule must certify that the officer seized the property and the reason for the seizure. In addition, the officer must notify the court of the names and addresses of each party known to the officer who has a claim to possession of the seized property.


1. The police department files a notice with the court requesting a property hearing. The notice states a description of the property and all interested parties.

Property hearings are held when the police department has obtained property where there could be question about the ownership of the property. The municipal court judge makes a decision about ownership.

a. The clerk logs in property hearings. b. The clerk assigns a court date for the property

hearing. c. Clerk prepares a property hearing docket.

d. Clerk mails certified and regular mail notice

or the hearing to all parties interested in the property to notify.

e. Clerk prepares the order awarding property.

Clerk should maintain a log listing all hearings. Some computer systems may do this for you. TMCEC FORM: NOTICE OF PROPERTY HEARING. TMCEC FORM: ORDER AWARDING POSSESSION OF PROPERTY.

2. On the court date, the judge awards the property and signs the order awarding the property.

a. Clerk verifies court seal is displayed on order.

TMCEC FORM: ORDER AWARDING POSSESSION OF PROPERTY.

2007 page 207


b. The clerk makes a copy of order awarding property to provide to the police department to release property.

c. Clerk files original order awarding property with property hearing paperwork.

3. There are no appeal authorized by statute from hearings under Article 47.02, C.C.P.

B. Junk Vehicle Abatement

Checklist 24-2

The municipal court has jurisdiction over contested junk vehicle abatement hearings. The City cannot remove the junk vehicle once a hearing is request until the judge’s decision is rendered. See also Section 54.044, L.G.C. for enforcement procedures of hearing officer’s orders.

Notes

1. The code enforcement/police department is required to send notice to the owner of a property, lien holders and/or owner of junk vehicle when a junk vehicle violation is found. The owner of the property and/or vehicle has a right to come to the court to contest the allegations within 10 days of the notice.

Junk vehicle abatement hearings are held when the code enforcement/police department has determined a vehicle to be a public nuisance and has requested it be removed within 10 days and the owner has requested a hearing to contest the validity of the allegation. Section 683.075. T.C.

a. Clerk receives request from owner of property, vehicle or lien holders to request a hearing. Clerk checks:

(1) Date the owner or lien holder received

notice; (2) Location of alleged violation; and

(3) Mailing information for owner or lien holder.

This request should be in writing.

2. The clerk begins processing by: a. Logging in junk vehicle abatement hearing.

b. Assigning the junk vehicle hearing to a date

for appearance in front of the judge.

Clerk should maintain a log of all junk vehicle abatement hearings. Some computer systems may do this for you.

page 208 2007


c. Clerk mails certified and regular mail notice to all parties to notify of the hearing.

May provide notice to owner/lien holder when original request is made. Have owner/lien holder sign that he or she received the hearing date.

d. Clerk prepares the order of abatement in case

the judge finds that the vehicle is a junk vehicle that is a public nuisance so it will be ready for the judge to sign on the court date.

e. Clerk prepares a junk vehicle abatement hearing docket.

3. On the court date the judge determines if there is a junk vehicle that is a public nuisance that needs removed:

b. The clerk makes a copy of the order to provide to the code enforcement/police department so the vehicle can be removed.

a. The clerk completes the order with any

additional information and has the judge sign the order.

c. Put original order in with junk vehicle

abatement hearing paperwork. d. Put all paperwork in the junk vehicle

abatement hearing filing cabinet.

C. Animal Cruelty Hearings The municipal judge on a showing of probable cause to believe that an animal has been or is being cruelly treated is required to issue a warrant and set a time within 10 calendar days of the date of the issuance of the warrant a hearing to determine if the animal has been cruelly treated. Section 821.022, H.S.C. This hearing does not effect or remove the ability to file criminal charges.


1. When the judge issues a warrant to seize a cruelly treated animal(s), the clerk schedules a hearing within 10 days after issuance of the warrant.

Officer presents judge probable cause affidavit that animal(s) are being cruelly treated.

2. The clerk: a. Logs in animal cruelty hearings;

Clerk should maintain a log listing all animal cruelty hearings. Some computer systems may do this for you.

2007 page 209


b. Assigns the hearing to an appearance date; c. Prepares a seizure warrant for the judge to

sign; d. Adds case to log of all animal cruelty

hearings; and e. Gives police officer, marshal or warrant

officer seizure warrant to serve and return a copy to the court as proof of delivery and seizure.

3. Clerk prepares orders for judge before the hearing.

b. An order determining the outcome of the animal(s) and who the animal(s) would be released is prepared if cruelty is found

a. An order to return the animal to the owners is

prepared if no cruelty is found

c. Clerk prepares an animal cruelty hearing

docket.

4. On the court date the judge renders a decision regarding whether the animal was treated cruelly.

a. Clerk provides prepared order to the judge to

sign. b. The clerk makes a copy of order and provides

to the animal control/police department for the animals proper disposition.

c. Clerk files original order with animal cruelty

hearing paperwork.

page 210 2007


D. Dangerous Dog Hearings The municipal court has jurisdiction over dangerous or vicious animal appeals and hearings. The judge may affirm, modify or reverse the previous decision of the animal authority or hold the hearing to determine if the animal is dangerous or vicious. Section 822.047, H.S.C., allows more stringent requirements to be imposed by municipal ordinance.


Definitions: “Animal control authority” is a municipal or county animal

Sec. 822.001(1), H.S.C.

control office with authority over the area in which the dog is kept or the county sheriff in an area that does not have an animal control office.

“Serious bodily injury” is an injury characterized by severe bite wounds or severe ripping and tearing of muscle that would cause a reasonably prudent person to seek treatment from a medical professional and would require hospitalization without regard to whether the person actually sought medical treatment.

Sec. 822.001(2), H.S.C.

“Dangerous dog” is a dog that:

• Makes an unprovoked attack on a person that causes bodily injury and occurs in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own; or

• Commits unprovoked acts in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own and those acts cause a person to reasonably believe that the dog will attack and cause bodily injury to that person.

“Dog” is a domesticated animal that is a member of canine family.

“Owner” is a person who owns or has custody or control of the dog.

Sec. 822.041(2)(B), H.S.C.

“Secure enclosure” means a fenced area or structure that is locked, capable of preventing the entry of the general public, including children, capable of preventing the escape or release of a dog, clearly marked as containing a dangerous dog, and in conformance with the requirements for enclosures established by the local animal control authority.

Sec. 822.041(2)(A), H.S.C.

Sec. 822.041(3), H.S.C.

Sec. 822.041(4), H.S.C.

Sec. 822.041(5), H.S.C.

2007 page 211


1. Dangerous dog seizure warrant and hearing.

a. Clerk administers oath to affiant swearing to complaint and accepts complaint.

b. Clerk administers oath to affiant swearing to a probable cause affidavit.

Sec. 822.002, H.S.C. Any person may file a sworn complaint alleging that a dog attack caused the death or serious bodily injury of a person. See CHECKLIST 1.

Sec. 822.002(a)(1-2), H.S.C. The complaint must be supported by an

c. Clerk prepares seizure warrant for dangerous dog for judge’s signature.

affidavit setting forth sufficient facts to establish probable cause to believe that the dog caused death or serious bodily injury by attacking, biting, or mauling a person. TMCEC FORM: AFFIDAVIT FOR WARRANT TO SEIZE A DANGEROUS DOG.

Sec. 822.002(a), H.S.C.

d. Judge signs warrant and places municipal court seal on warrant. (Sometimes the software prints the seal on the warrant; sometime the clerk places the seal on the warrant after the judge signs the warrant.)

Sec. 822.002(b), H.S.C. TMCEC FORM: WARRANT: SEIZURE OF DANGEROUS DOG.

When a sworn complaint is filed, the court must issue a warrant authorizing the animal control authority to seize the dog and impound it in secure and humane conditions until the court orders the disposition of the dog.

The warrant contains notice of the time and place of the hearing to determine if the dog caused the death of or serious bodily injury to a person.

e. The hearing must be set within 10 days of

issuing the warrant.

Sec. 822.003(c), H.S.C.

f. Clerk notifies all interest parties of the

hearing, including the county or city attorney.

2. At the hearing, the court determines if the dog caused the death or serious bodily injury of a person and whether there are any applicable exceptions to prevent the destruction of the dog.

Sec. 822.003(a), H.S.C. There is no requirement that the warrant contain the notice of hearing. It is simply more efficient to use the warrant to provide the required notice.

Sec. 822.003(d-f), H.S.C.

page 212 2007


a. If there is no finding that death or serious

bodily injury occurred, the court must release the dog to its owner or other authorized person.

b. If the court determines at a hearing that a dog

causes the death of a person, the court must order the dog be destroyed.

Sec. 822.004, H.S.C.

See TMCEC FORMS: DANGEROUS DOG JUDGMENT.

The dog must be destroyed by a licensed veterinarian, trained animal shelter or humane society personnel, or trained animal control authority personnel. Sec. 822.003(d), H.S.C.

Sec. 822.0423(d), H.S.C.

c. The owner or person filing the action may appeal the determination of the trial court in the same manner as any other appeal. However, there are no provisions for dealing with the dog during the pendency of the appeal.

2007 page 213

Documents

INTRODUCTION AND ACKNOWLEDGMENTS - … and acknowledgments The Texas Court Clerks Association and the Texas Court Clerks Education Committee are proud to present this publication to