9/26/2019

1

NOTICE, What Notice?

NOTICE REQUIREMENTS FOR DEFENDANTS IN MUNICIPAL COURT

Pat Riffel, CMCC City of Friendswood

COURSE OBJECTIVES

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

1. List ways a defendant is notified of charges being filed.

2. Identify notices associated with juvenile filings.

3. Discuss Post Judgment Notices.

1

2

3

9/26/2019

2

NOTICE OF CHARGES and APPEARANCE

CCP Art 105/ US & Texas ConstitutionsDefendant has absolute right to notice of the charge being filed against them

FUNDAMENTAL DUE PROCESS RIGHT!!!

Can be done by the following “charging instruments”CitationComplaint

CITATION

TC§543.003/CCP Art. 14.06Requirements of a citation

1. Time/Place person is to appear2. Offense Charged3. Name/Address of person charged4. License number if applicable

**CMV/CDL citations have their own set of rules

OTHER REQUIREMENTS

Fail to Maintain Financial Responsibility

TC §601.233 Information regarding second insurance convictions and DL suspensions “in type larger than any other type on the citation”

4

5

6

9/26/2019

3

RIGHT TO DRIVER’S SAFETY COURSECCP §45.0511 (q)

“You may be able to require that this charge be dismissed by successfully completing a driving safety course…You will lose that right if, on or before your appearance date, you do not provide the court with notice of your request to take the course”

**Speeding citations require—maximum speed limit/alleged speed

Racial Profiling InformationCCP Art. 2.132

1. race and ethnicity2. whether a search was conducted and if it was

consensual3. whether office knew the race/ethnicity prior to stop

May be other information that your PD collects on citation to fulfill certain legal requirements they have for reporting

CONTRACTUAL AGREEMENTS

OMNIBASE (DPS Failure to Appear Program)TC §706.003must include a warning that person may be denied renewal of DL if fail to appear or satisfy judgment

Scofflaw(TXDOT)Registration Suspension Program TC §703.004(b)must include a warning person may be denied registration renewal if fail to appear or satisfy judgment

7

8

9

9/26/2019

4

COMPLAINT AS A CHARGING INSTRUMENT

Citation not signed or delivered

Charge is Amended

Charge is Enhanced

Should be served by summons to ensure defendant has notice of charges

APPEARANCE

CCP Art. 17.085

NOTICE OF APPEARANCE DATE. “The clerk of a court that does not provide online Internet access to that court's criminal case records shall post in a designated public place in the courthouse notice of a prospective criminal court docket setting as soon as the court notifies the clerk of the setting.”

FAIL TO APPEARCCP 45.014 (e)

Notice required before arrest warrantBy “telephone or regular mail” Date and time w/i 30 days Name, Address of court Alternatives to payment Consequences for FTA

Defendant may request alternate date/time if unable to appear on date given

10

11

12

9/26/2019

5

JUVENILE NOTICES

Parental summons CCP §45.0215(a-1) Address obligation CCP§ 45.057

1. by court at initial appearance2. by peace officer providing notice on citation3. by peace officer when release from non secure custody

Expunction CCP §45.0216(e) penal code, Chap 37 Education Code (minimum)

POST JUDGMENT NOTICES

PleaShow CauseReconsideration of fine

PLEA in Person or Mail

CCP 27.14 (b)Delivered by person or mailMust notify defendant of:• Amount of fines/costs• Alternatives to payment• Amount of Appeal bond (if requested)

Can now be “regular mail”

13

14

15

9/26/2019

6

FAIL TO COMPLYSHOW CAUSE HEARINGS

CCP Art 45. 051 (c-1)Opportunity to show “good cause” Notify in writing Mailed to address on file

Juveniles fail to complyCCP 45.050 Contempt hearing

CAPIAS PRO FINESHOW CAUSE HEARINGS

CCP Art 45. 045 (a-2)Delinquency in payment

Must provide notice by regular mail Specific date and time of Show Cause

hearing Examine ability to pay

RECONSIDERATION OF FINE

CCP 45.0445 (a)New requirement of 86th Legislature 2019If DEFENDANT GIVES NOTICE that there is difficulty with payment they may request a hearing by:a) Voluntarily appearingb) Filing a motionc) Mailing a letterd) Any other method established by judge

16

17

18

9/26/2019

7

19

What does the law require be printed on a citation?

1. Transportation Code § 543.003. GENERALLY. A written notice to appear in court must contain:

a) The time (must be at least 10 days after the date of arrest unless the person arrested demands an earlier

hearing) and place (must be before a magistrate having jurisdiction of the offense who is in the

municipality or county in which the offense is alleged to have been committed) the person is to appear (see

§ 543.006)

b) The offense charged

c) The name and address of the person charged

d) If applicable, the license number of the person’s vehicle

2. Code of Criminal Procedure Art. 14.06. GENERALLY. A citation must contain:

a) Written notice of the time and place the person must appear before a magistrate

b) Name and address of the person charged

c) The offense charged

d) The following in boldfaced or underlined type or in all caps: “If you are convicted of a misdemeanor

offense involving violence where you are or were a spouse, intimate partner, parent, or guardian of the

victim or are or were involved in another, similar relationship with the victim, it may be unlawful for you to

possess or purchase a firearm, including a handgun or long gun, or ammunition, pursuant to federal law

under 18 U.S.C. Section 922(g)(9) or Section 46.04(b), Texas Penal Code. If you have any questions

whether these laws make it illegal for you to possess or purchase a firearm, you should consult an

attorney.”

3. Transportation Code § 543.010. SPECIFICATIONS OF SPEEDING CHARGE. The complaint and the

summons or notice to appear on a charge of speeding must specify:

a) the maximum or minimum speed limit applicable in the district or at the location; and

b) the speed at which the defendant is alleged to have driven.

4. Transportation Code § 601.233. FMFR: NOTICE OF POTENTIAL SUSPENSION. A citation for an offense

of failure to maintain financial responsibility must include, in type larger than other type on the citation, except for

the type of the statement required by Section 708.105: “A second or subsequent conviction of an offense under the

Texas Motor Vehicle Safety Responsibility Act will result in the suspension of your driver's license and motor

vehicle registration unless you file and maintain evidence of financial responsibility with the Department of Public

Safety for two years from the date of conviction. The department may waive the requirement to file evidence of

financial responsibility if you file satisfactory evidence with the department showing that at the time this citation

was issued, the vehicle was covered by a motor vehicle liability insurance policy or that you were otherwise exempt

from the requirements to provide evidence of financial responsibility.”

5. Transportation Code § 543.007. NOTICE TO APPEAR: COMMERCIAL VEHICLE OR LICENSE. A

notice to appear issued to the operator of a commercial motor vehicle or holder of a commercial driver’s license or

commercial driver learner’s permit, for a violation of a law regulating the operation of vehicles on highways, must

contain:

a) Information required to comply with Chapter 522, Transportation Code, and the Federal Commercial Motor

Vehicle Safety Act of 1986 (Title 49, U.S.C. Section 31302).

b) The proposition that a citation issued to a CDL holder must contain the social security number of the driver

is widely accepted but not expressly stated in federal or state law. Section 31308(4)(B) of the Federal

Commercial Motor Vehicle Act of 1986 requires that the license contain the social security number or other

number that the Secretary of Transportation determines is necessary to identify the driver.

c) Section 543.201 of the Transportation Code requires courts to keep records reflecting that a person is

charged with a law violation relating to the operation of a motor vehicle on a highway.

d) Section 543.202 states “the record must be made on a form or by a data processing method acceptable to

the department and must include, among other things, the person’s social security number, if the person

was operating a commercial motor vehicle or was the holder of a commercial driver’s license or

commercial driver’s learning permit.”

e) Since CDL holders are not required to make an appearance in court, and because such information is still

manually reported by court to DPS via the citation, the only way this information is guaranteed to be

obtained is if it is collected by a peace officer at the time the citation is issued.

6. Transportation Code § 702.004(b). TXDOT REGISTRATION SUSPENSION CONTRACT FOR

ENFORCEMENT OF CERTAIN ARREST WARRANTS. For a city contracting with TxDot in the Scofflaw

Program, the citation must include a warning that states 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.

7. Transportation Code § 706.003. DPS FAILURE TO APPEAR PROGRAM CONTRACT FOR

ENFORCEMENT OF CERTAIN ARREST WARRANTS. For a city participating in the OmniBase program, the

citation must include a warning that states that if the person fails to appear in court as provided by law for the

prosecution of the offense or if the person fails to pay or satisfy a judgment ordering the payment of a fine and cost

in the manner ordered by the court, the person may be denied renewal of the person's driver's license.

8. Transportation Code § 708.105. NOTICE OF POTENTIAL SURCHARGE. A citation issued for an offense

under a state or local traffic law must include, in type larger than any other type on the citation: “A conviction of an

offense under a traffic law of this state or a political subdivision of this state may result in the assessment on your

driver's license of a surcharge under the Driver Responsibility Program.”

9. Code of Criminal Procedure Art. 2.132. DATA FOR RACIAL PROFILING. Each law enforcement agency

must adopt a detailed written policy on racial profiling. This, in part, requires collection of information relating to

traffic stops in which a citation is issued and arrests resulting from those traffic stops, including information relating

to:

a) the race and ethnicity of the individual detained;

b) whether a search was conducted and, if so, whether the person detained consented to the search; and

c) whether the peace officer knew the race or ethnicity of the individual detained before detaining that

individual

d) The data is submitted to the local governing body as part of an annual report on racial profiling.

10. Code of Criminal Procedure Art. 45.0511(q). RIGHT TO A DRIVERS SAFETY OR MOTORCYCLE

OPERATORS COURSE. A defendant charged with an offense eligible for DSC or MOC must receive the

following notice on the citation: “You may be able to require that this charge be dismissed by successfully

completing a driving safety course or a motorcycle operator training course. You will lose that right if, on or before

your appearance date, you do not provide the court with notice of your request to take the course.”

11. Code of Criminal Procedure Art. 45.057(h). ADDRESS OBLIGATION. A child and/or parent must keep the

court informed of the child’s current address. For the obligation to become effective, notice must be provided to the

child, parent, or both. One of the three ways that a person may be placed under such an obligation is by being

provided with a copy of the language of the statute at the time they are issued a citation.

12. Texas Administrative Code § 16.100. ADMINISTRATIVE RULE FOR COMMERCIAL DRIVER’S

LICENSE-HOLDERS. A traffic citation issued to a person driving a commercial motor vehicle, or who is the

holder of a commercial driver’s license or commercial driver’s learner’s permit, for a violation of any law regulating

the operation of vehicles on highways, must be on a form that contains:

a) the name, address, physical description, and date of birth of the party charged;

b) the number, if any, of the person's driver's license;

c) the registration number of the vehicle involved;

d) whether the vehicle was a CMV as defined in Texas Transportation Code, Chapter 522;

e) whether the vehicle was involved in the transporting of hazardous materials; and

f) the date and nature of the offense, including whether the offense was a serious traffic violation as defined in

Texas Transportation Code, Chapter 522.

FAIL TO APPEAR RESEST

Article 45.014(e) (Warrant of Arrest) is amended to prohibit the issuance of an arrest warrant for

the defendant’s failure to appear at the initial court setting, including failure to appear as required

by a citation issued under Article 14.06(b) unless additional notice is provided by telephone or

regular mail: (1) a date and time when the defendant must appear (S.B. 1913 states it must be

within a 30-day period of the notice); (2) the name and address of the court; (3) information

regarding alternatives to full payment (See discussion above.); and (4) the consequences of the

defendant’s failure to appear.

The amendment to Article 45.014(e) is ostensibly broad enough to include other nonappearance

offenses under state law involving a citation (e.g., Violate Promise to Appear). However, the

amendment does not address the issuance of a warrant for the underlying offense for which the

defendant is failing to appear. The practice of providing notice prior to the issuance of an arrest

warrant has long been considered a “best practice” which is widely utilized by many, if not most,

courts in the state. This amendment codifies the practice.

As amended Article 45.014(f) authorizes a defendant who receives notice under Subsection (e)

to request an alternative date or time to appear before the justice or judge if the defendant is

unable to appear on the date and time included in the notice. The amendment does not,

however, infringe on a court’s discretion to grant or deny such a request. Reminder: Since 2015,

in regard to the notice required by Subsection (e), Texas law has allowed courts to utilize e-mail

in lieu of regular mail. (See, Sections 80.001-.005, Government Code.)

Article 45.014(g) is amended in H.B. 351 to require a justice or judge to recall an arrest warrant

for the defendant’s failure to appear if, before the arrest warrant is executed, the defendant

voluntarily appears to resolve the arrest warrant and the arrest warrant is resolved in any manner

authorized by that code. S.B. 1913 requires that the warrant be recalled if the defendant voluntarily

appears and makes a good faith effort to resolve the arrest warrant before the warrant is executed.

NOTICE OF CONTINUING OBLIGATION TO INFORM COURT OF

CHILD’S RESIDENCE

DEFENDANT CAUSE NUMBER

ATTENTION: Pursuant to Article 45.057(j), Texas Code of Criminal Procedure, you are notified as follows:

1. A child and parent required to appear before the Court have a continuing obligation to provide the Court in writing with the current address and residence of the child.

2. The obligation does not end when the child reaches age 17.

3. On or before the seventh day after the date the child or parent changes residence (any place where the child lives or resides for a period of at least 30 days), the child or parent shall notify the Court of the current address in the manner directed by the Court.

4. Failure to provide notice is a Class C misdemeanor and may result in arrest.

5. This charge may be levied against both defendant and parent, or either.

6. The obligation to provide notice terminates on discharge and satisfaction of

the judgment or final disposition not requiring a finding of guilt.

7. If an Appellate Court accepts an appeal for a trail de novo, the child and

parent shall provide the notice to the Appellate Court.

CHANGES IN ADDRESS: Shall be provided in writing to the Court at: Anywhere Municipal Court 1313 Mockingbird Lane Anywhere, TX 77546 281-867-5309 QUESTIONS: For additional information about your obligation contact the Court

CAUSE NUMBER: 19TR-0000x FAIL TO MAINTAIN FINANCIAL RESPONSIBILITY STATE OF TEXAS IN THE MUNICIPAL COURT CITY OF ANYWHERE VS COUNTY, TEXAS LITTLE JOHNNY

SUMMONS TO ANY PEACE OFFICER OF THE STATE OF TEXAS - GREETINGS: YOU ARE HEREBY COMMANDED TO SUMMON BIG JOHNNY to appear at 6:30 pm. on September 18, 2019, before the Municipal Court of the City Anywhere, County, Texas. To the person named above: You are ORDERED to personally appear AND to bring Little Johnny , a minor child, with you to the Municipal Court at the time and place stated above. Failure to appear may be punishable as a Class C misdemeanor. "It is an offense for a person to intentionally influence or coerce a witness to testify falsely or to elude legal process. It is also a felony offense to harm or threaten to harm a witness or prospective witness in retaliation for or on account of the service of the person as a witness or to prevent or delay the person's service as a witness to a crime." A child and parent required to appear before the court have an obligation to provide the court in writing with the current address and residence of the child. The obligation does not end when the child reaches 17. On or before the seventh day after the date the child or parent changes residence, the child or parent shall notify the court of the current address in the manner directed by the court. A violation of this subsection may result in arrest and is a Class C misdemeanor. The obligation to provide notice terminates on discharge and satisfaction of the judgment or final disposition not requiring a finding of guilt. The Court is located at 1313 Mockingbird Lane, Anywhere, TX. Should you have any

questions regarding this matter, please contact this office at (281) 867-5309 The failure of a parent, managing conservator, or guardian to appear in Court with a minor, after being summoned to appear, may be punishable as a Class C misdemeanor (fine up to $500.00).

_________________ DATE __________________________________ Judge, Municipal Court City of Anywhere County, Texas

NOTICE OF EXPUNCTION RIGHTS: PENAL OFFENSES/ DEFERRED DISPOSITION/ (Art. 45.0216, C.C.P.)

Anywhere Municipal Court

1313 Mockingbird Lane

Anywhere, TX 77546

281-867-5309

NOTICE OF EXPUNCTION RIGHTS

PENAL OFFENSES

ATTENTION DEFENDANT AND PARENT:

Pursuant to Article 45.0216(e), Code of Criminal Procedure, upon conviction for a misdemeanor punishable by fine only or a

violation of a penal ordinance, the Court must inform the child who is the subject of the hearing and the child’s parent in open court

of the child’s expunction rights and provide the child and the child’s parent with a written copy of Article 45.0216 which reads as

follows:

Art. 45.0216. EXPUNCTION OF CERTAIN CONVICTION RECORDS OF CHILDREN

(a) In this article, “child” has the meaning assigned by Section 51.02, Family Code.1

(b) A person convicted of not more than one offense described by Section 8.07(a)(4) or (5),23 Penal Code, while the person was a

child may, on or after the person’s 17th birthday, apply to the Court in which the child was convicted to have the conviction

expunged as provided by this article.

(c) The person must make a written request to have the records expunged. The request must be under oath.

(d) The request must contain the person’s statement that the person was not convicted while the person was a child of any offense described by Section 8.07(a)(4) or (5), Penal Code, other than the offense the person seeks to have expunged.

(e) The Judge shall inform the person and any parent in open court of the person’s expunction rights and provide them with a copy

of this article.

(f) If the Court finds that the person was not convicted of any other offense described by Section 8.07(a)(4) or (5), Penal Code,

while the person was a child, the Court shall order the conviction, together with all complaints, verdicts, sentences, and prosecutorial

and law enforcement records, and any other documents relating to the offense, expunged from the person’s record. After entry of the order, the person is released from all disabilities resulting from the conviction and the conviction may not be shown or made

known for any purpose.

(g) This article does not apply to any offense otherwise covered by: (1) Chapter 106, Alcoholic Beverage Code;

(2) Chapter 161, Health and Safety Code; or

(3) Section 25.094, Education Code.

(h) Records of a person under 17 years of age relating to a complaint dismissed as provided by Article 45.051 or 45.052 may be

expunged under this article.

(i) The justice or municipal court shall require a person who requests expungement under this article to pay a fee in the amount

of $30 to defray the cost of notifying state agencies of orders of expunction.

(j) The procedures for expunction provided under this article are separate and distinct from the expunction procedures under

Chapter 55.

1 A child means a person who is 10 years of age or older and under 17 years of age; or 17 years of age or older and under 18 years of age who is

alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before

becoming 17 years of age. 2 Class C misdemeanor Penal Code offenses and penal ordinance violations.

Art. 45.045. CAPIAS PRO FINE.

a-2) Before a court may issue a capias pro fine for the

defendant's failure to satisfy the judgment according to its

terms:

(1) the court must provide by regular mail to the

defendant notice that includes:

(A) a statement that the defendant has failed to

satisfy the judgment according to its terms; and

(B) a date and time when the court will hold a

hearing on the defendant's failure to satisfy the judgment

according to its terms; and

(2) either:

(A) the defendant fails to appear at the

hearing; or

(B) based on evidence presented at the hearing,

the court determines that the capias pro fine should be issued.

Text of subsection as added by Acts 2017, 85th Leg., R.S., Ch.

1127 (S.B. 1913), Sec. 12

Art. 43.035 RECONSIDERATION OF FINE OR COSTS

(a) If a defendant notifies the court that the defendant

has difficulty paying the fine and costs in compliance with

the judgment, the court shall hold a hearing to determine

whether that portion of the judgment imposes and undue

hardship on the defendant.

(b) For purposes of Subsection (a), a defendant may notify

the court by:

(1) voluntarily appearing and informing the court or

the clerk of the court in a manner established by the

court for that purpose;

(2) filing a motion with the court;

(3) mailing a letter to the court; or

(4) any other method established by the court for

that purpose