TMCEC The Recorder

©2004 Texas Municipal Courts Education Center, Austin. Funded by a grant from the Court of Criminal Appeals.

Volume 13 MAY 2004 No. 5

Handling Requests for Court RecordsBy Ted Wood, Special Counsel for Trial Courts, Office of Court Administration, Austin

Handling Requests continued on page 9

Procedendo continued on page 4

Writ of ProcedendoEnforcing Judgments Post Appeal

By Ryan Kellus Turner, Program Attorney and Deputy Counsel, TMCECI N S I D E T H I S I S S U E

Columns:Around the State ................................... 2Clerk’s Corner ...................................... 20Collections Corner .............................. 24Court Security ...................................... 22Court Technology ............................... 25Ethics Update ...................................... 27From the Center .................................. 14From the General Counsel .................. 3Resources for Your Court ................. 15Other:Corrected Expungement Form ........ 17Law Day ................................................ 16Registration Form ............................... 19TMCEC FY04 Program Schedule ...18

Last summer, Ryan Turner, ProgramAttorney and Deputy Counsel forTMCEC, asked me to teach a class forthe 12-hour judges program. The topic?How municipal courts should deal withrequests for records. Thankfully, Ryangave me plenty of lead time to prepare.

In the first place, I was not particularlywell-versed on the matter. Secondly,after a couple of afternoons of readingabout open records, I realized that mysubject was kind of difficult to explain.There were a lot more laws and rules onaccess to records than I had everthought. But talking about the details

of a particular rule wouldn’t be the hardpart. The trick would be gettingeveryone to understand when a certainrule did and did not apply.

What I needed to teach was not somuch the answers to specific questions,but rather what questions to ask. Andwhen to ask them. The more I thoughtabout my task, the more I thought aflowchart might work – a flowchart thatif followed from start to finish wouldcause a person to ask all of the rightquestions at all of the right times.

This issue of the Municipal Court Recordercontains the flowchart that I first

envisioned several months ago. You canalso find the flowchart and anaccompanying step-by-stepcommentary at www.courts.state.tx.us/mc_records.asp. I’m confident you canuse the flowchart to correctly analyzeany request for records your court mayreceive.

This article uses the flowchart toexamine a typical records request. Infact, this is the records request that westudied at the TMCEC Dallas 12-hourschool in response to a suggestion fromone of the judges in the audience. Iinvite you to roll up your sleeves and

Though most cases in municipal andjustice court are not appealed, thefollowing scenario occurs on a regularbasis: Defendant is found guilty, ajudgment is entered, the defendant isinformed that he or she has 10 days toperfect an appeal by filing an appealbond with the local trial court. Morethan 10 days later, the defendant arriveswith bond in hand. Pursuant to Article45.0426(a) of the Code of CriminalProcedure, the appeal is untimely.

Should the court inform the defendantthat the appeal bond was not timely

filed and deny the defendant’s appeal?Alternatively, should the court gothrough the effort of sending the bondand related paper work to the appellatecourt knowing that the defendant didnot perfect the appeal?

The Code of Criminal Procedureprovides that it is not the role of themunicipal or justice court to act as thegatekeeper of appeals. Withoutreference to whether the bond is filedin a timely manner, Article 45.043 statesthat when a defendant files the bond,

Municipal Court Recorder May 2004

Texas Municipal CourtsEducation Center

1609 Shoal Creek Boulevard, Suite 302Austin, Texas 78701

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

Web site: www.tmcec.com

FY04TMCA Officers

President: Sharon Hatten, MidlandPresident-Elect: Dan Francis, Robinson1st V.P.: Edwin L. Presley, Benbrook2nd V.P.: Daniel J. Simms, HoustonSecretary: Luane Turvey, WebsterTreasurer: Robert C. Richter, Missouri CityPast-President: Joe Pirtle, Seabrook

Directors

Jan Matthews, Lubbock . Ninfa Mares,Fort Worth . Vicki Gerhardt, New London. Robin Smith, Midland . David Perkins,New Braunfels . Miles Whittington,Kemah . George Bill Robinson, Yorktown. Robin A. Ramsay, Denton . RobertBarfield, Pasadena . Walter Dick Kettler,Beverly Hills

Staff

• Hope Lochridge, Executive Director• W. Clay Abbott, General Counsel• Ryan Kellus Turner, Program Attorney &

Deputy Counsel• Margaret Robbins, Program Director• Jo Dale Bearden, Program Coordinator• Margaret Danforth, Admin. Director• Patricia Russo, Program Assistant II• Rey Guzman, Multimedia Specialist• Beatrice Flores, Registration Coordinator• Lidia Ball, Research Assistant

Published by the Texas Municipal CourtsEducation Center through a grant from theTexas Court of Criminal Appeals. Sub-scriptions are free to all municipal judges,clerks, prosecutors, and support personnelemployed by the municipal court. Othersmay purchase an annual subscription for$50.

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

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

AROUND THE STATE

GCAT Annual MeetingOn June 2-4, 2004, the Annual Meeting of the Government CollectorsAssociation of Texas (GCAT) will be held in Galveston at the San Luis ResortConference Center. Call 512/936-7557 for more information. The agenda isdesigned for judges and court support personnel for all trial courts in Texas.Municipal judges and court support personnel who have attended in the pasthave highly rated the program for its practical, yet innovative approach toincreasing court collections rates. The program will feature many similar speakersand topics to the TMCEC Fines & Fees Conference that was held in March2004. The program is highly recommended to courts that seek to improve theircollections rates.

TMCA Annual MeetingOn September 9-11, 2004, the Annual Meeting of the Texas Municipal CourtsAssociation will be hosted at the Doral Tesoro Hotel and Golf Club, located inthe DFW area. The focus of the conference will be courtroom security, fine andcollection techniques, computer software and technology. For additionalinformation, watch the TMCA website (www.txmca.com) or contact the TMCAPresident, Judge Sharon Hatten, Midland Municipal Court, P.O. Box 1152,Midland, Texas 79702, or by telephone, 432/685-7303.

Task Force Reviews CanonsThe Texas Supreme Court has created a task force composed of members ofthe bench, bar, and general public to review the Code of Judicial Conduct andmake recommendations “for revisions required by law, to make suggestions onimproving the effectiveness of existing canons, and to suggest othermodifications consistent with the Code’s broad purpose of upholding theintegrity, independence and competence of the judiciary.” Charles L. Babcock ofDallas chairs the Task Force and Justice Wallace B. Jefferson is the Court’s liaisonto the Task Force. Judge Monica Gonzalez (San Antonio Municipal Court) is therepresentative for municipal courts on the Task Force, as well as the Commissionon Judicial Conduct. The Task Force is meeting via videoconference throughoutthe spring and possibly summer. For more information or to submit comments,contact Charles L. Babcock, Jackson Walker, L.L.P. at 1401 McKinney Street,Suite 1900, Houston, Texas 77010, by telephone 713/752-4210 or by email ataddress [email protected].

May 2004 Municipal Court Recorder

FROM THE GENERAL COUNSEL W. Clay Abbott

Jail Credit andCommunity

ServiceMost of you noted the significantchange in jail credit and communityservice credit that was made duringthe last legislative session. HB 2424amended Articles 45.048 and 45.049,Code of Criminal Procedure. Thecredit for each period of timedesignated by the court under Article45.048(b), C.C.P.—not less than eight(8) hours or more than 24 hours—and the credit for each eight (8) hoursof community service was modified.The previous credit for the respectiveperiods was $100 (no more than$100, no less than $100, $100exactly). That amount was modifiedto “no less than $50.” This providednot only a more effective collectionsopportunity, it more importantlyprovided for judicial discretion andlocal adaptation. It is rare that alegislative action has been met withsuch universal glee. Courts couldlower the rate, leave it, or even raiseit. The problem is, in their euphoricuse of the changes, some courts havebeen jumping the gun.

The sections of HB 2424 amendingArticles 45.048 and 45.049, C.C.P.,(Sections 65 and 66) specificallydesignated an effective date ofJanuary 1, 2004. Those changes apply“only to a defendant serving asentence for an offense committedon or after the effective date of thissection.” Further, each section goeson to state that:

A defendant serving a sentencefor an offense committed beforethe effective date of this sectionis covered by the law in effectwhen the offense wascommitted, and the former lawis continued in effect for thatpurpose. For purposes of thissubsection, an offense iscommitted before the effectivedate of this section if anyelement of the offense occursbefore that date.

This means that courts mustcontinue to give the credit requiredunder the previous law to anydefendant charged with an offensecommitted before January 1, 2004.The date of offense controls overthe dates of incarceration,community service, judgment orissuance of capias pro fine. Since thedefendant’s constitutional rights todue process and the protectionsagainst ex post facto application areimplicated, the risk of action infederal court under Section 1983,U.S.C., is high. The complicated issueof jail credit is made even moreperilous for a time by these changes.

While we celebrate a positivelegislative development, we need tobe careful in its application.

Juvenile Racingis Back

A recent A.G. Opinion may have animpact on many of our courts. Whilethe Opinion will be covered in depth

in our annual analysis of AttorneyGeneral Opinions in a later issue ofthe Municipal Court Recorder, let megive you a quick warning aboutOpinion GA-0157. Due toinadvertent omissions in the newdrag racing statute—Section 545.420,Transportation Code—it was notincluded in the list of otherTransportation Code offensesprosecutable in county juvenile courtunder the Family Code. TheAttorney General opined that thesenew Class A or B misdemeanors andfelonies were under the jurisdictionof municipal and justice courts asfine-only misdemeanors. You mayalso go to www.tmcec.com to find alink to Attorney General OpinionGA-0157.

A QuickCorrection

With assistance of the able eye ofthe Honorable Mitch Solomon, anAustin Municipal Judge, we havediscovered an error in the 2004TMCEC Forms Book. The age of 18was improperly included in the formwhile the age of 17 was proper underthe statute. We hope there was noconfusion generated by this error. Acorrected copy of Application ForExpungement Penal Offenses (Art.45.0216, C.C.P.) can be found onpage 17 of this publication. Theoriginal appeared on page 175 of the2004 TMCEC Forms Book.


“all further proceedings in the case inthe justice or municipal court shallcease.”

But wait a minute. Chapter 45 onlyapplies to proceedings in municipaland justice courts, right?1 And Article45.0426(a) provides that “When theappeal bond has been filed with thejustice or judge who tried the casenot later than the 10th day after theday the judgment was entered, theappeal in such case shall be held to beperfected.”2 Then doesn’t the italicizedclause suggest that it is the role of thelocal trial court judge to determine ifthe appeal is perfected?3

On its surface, it would appear so.However, this appears to be aninstance where, during legislativedrafting, the “cut and paste”technology of word processing hascaused some confusion. Article45.0426 has not always been a part ofChapter 45. Prior to being moved in1999, it was formerly Article 44.14(Chapter 44 is entitled Appeal and Writof Error).

Reading the law in context of itsformer location – Chapter 44 – itbecomes more readily apparent that itis the appellate court’s function(generally a county court) to hold theappeal perfected, not the municipal orjustice court. Considering that theAmerican judicial system was builtaround the adage “one appeal as amatter of right,” it seems hardly fairthat a judge who found a defendantguilty can also unilaterally deny adefendant the opportunity to appeal.Accordingly, Texas law leaves thedecision making up to a differentcourt. As provided in Article45.0426(b), “if an appeal bond is nottimely filed, the appellate court doesnot have jurisdiction over the case andshall remand the case to the justice ormunicipal court for execution of thesentence.”

Because of the possible appearance of

obstructionism, a number ofmunicipal and justice courts leave it upto the appellate court to remand thecase pursuant to Article 45.0426(b).

But how exactly does such a remandoccur? The Code of CriminalProcedure provides no expressguidance or name for such procedure.Alas, in such situations, what can a cityor county attorney do to ensure thatthe judgment of the original trial courtis executed?

It Rhymes with Innuendo (and notmuch else)

While its use has become obsolete insome states, the writ of procedendoremains alive but obscure in Texas law.While originally “procedendo” was a writused to compel a judge to proceed tojudgment, in Texas “procedendo” hascome to mean an appellate court orderfor an inferior court to executejudgment .4 The writ of procedendo isthe appropriate remedy for the State toutilize when seeking to have a caseeffectively remanded from county tomunicipal or justice court when adefendant has not perfected his or herappeal in criminal cases.5

It is “Extraordinary”

As previously stated, the writ ofprocedendo is an “extraordinary writ,”meaning an original action in anappellate court. Other extraordinarywrits include the writ of certiorari(which enables an appellate court todirect a court of inferior jurisdiction totransmit to it the record of someproceeding for review), the writ ofprohibition (an order from a court ofsuperior jurisdiction to prevent aninferior court from acting beyond itsjurisdiction), and a writ of quo warranto(an order from a court of superiorjurisdiction to determine disputedquestions about whether a person isentitled to hold public office andexercise the office’s legal authority).

Authority to Issue

While the Texas Supreme Court and

Texas Court of Criminal Appeals haveexpress authority to issue the writ ofprocedendo,6 the authority of a countycourt to issue the writ stems from itsconstitutional and statutoryauthorization to issue any writnecessary to exercise supervisoryjurisdiction of the local trial courts(e.g., municipal and justice courts).7The authority of the county trial courtof limited jurisdiction to exerciseauthority over local trial courts oflimited jurisdiction is known asincidental appellate jurisdiction.8

Illustrations of Application

When a county court has obtainedjurisdiction of an appeal from a non-record municipal or justice court, thejudgment of the local trial court isessentially annulled.9 To the chagrin ofcity attorneys who have not obtainedthe consent of the county attorney toprosecute the trial de novo,10 once theappeal has been perfected, anydismissal (including a voluntarydismissal by the State) is not merelythe end of the appeal but a dismissalof the entire case as if it had neverbeen filed in municipal or justice court.Consequentially, efforts to execute thejudgment of the local trial courtfollowing dismissal at the county trialcourt by means of procedendo would beerroneous.11

Consider another instance where thedefendant appeals from the local trialcourt to the county court. Assume thedefendant perfects the appeal, butthereafter fails to appear for trial. Maythe county court dismiss the appeal,and issue a writ of procedendo orderingthe local trial court judge to issue acapias pro fine ordering the defendant tobe committed to jail in satisfaction ofthe local trial court’s originaljudgment?

The answer, once again, is “No.” InEx parte Swift, the Court of CriminalAppeals held that once the appeal wasperfected, procedendo was no longer anoption.12 Rather, the Court issued a

Procedendo continued from page 1


writ of habeas corpus and stated that insuch circumstances, a county courtshould enter an order forfeiting thedefendant’s bond.

But what if the defendant appealsfrom municipal court and afterwards itis discovered in county court that thereis a defect in the bond? In Martin v.State, the county court dismissed theappeal from the judgment of themunicipal court due to the defendant’sfailure to specify to which countycourt at law notice of the appeal wasmade.13 The Court of CriminalAppeals disagreed with the countycourt’s hyper-technical construction ofthe statute that is now Article45.0425(b), Code of CriminalProcedure. In doing so, the Courtstated that “It has long been the rulethat a criminal appeal, dismissed forwant of sufficient bond, will bereinstated upon motion accompaniedby a sufficient bond.”14

Article 44.15, Code of CriminalProcedure, provides that when anappellate court determines that a bondis defective, at its discretion, the courtmay allow the appellant to amend suchbond by filing a new bond on suchterms as the court may prescribe.What if the appellant fails to avail himor herself of the opportunity providedby the appellate court? Such wasexactly the case in Lopez v. State.15

Lopez was convicted in a municipalcourt of record. He appealed. A defectwas discovered in the bond. Lopez wasafforded time to correct it. No effortwas made to do so and the appeal washeld to be properly dismissed.

Would this be a circumstance thatcould warrant procedendo? In light ofMann v. Brown, the answer would be“Yes.”

Conclusion

In complying with the mandate ofArticle 45.0426, C.C.P., many countycourts act in the spirit of procedendo ona regular basis, though they may or

may not know it. In simplest terms,procedendo is merely the means bywhich the county court remands thecase as contemplated in Article45.0426(b).

While in Mann the county judgeordered the county clerk to issue thewrit of procedendo, prosecutors shouldbe prepared to apply for the writ,especially in instances where there isreason to believe that the appeal to thecounty court is untimely or where thecounty court has held the appeal tonot be perfected but nevertheless failsto procedendo to the local trial court onits own motion.

It is recommended to prosecutors thatin making application for procedendo, acopy of the writ should be provided(see page 6 in this newsletter ). Alongwith prairie dogs and horn frogs,forms for procedendo are sparse. Twoyears ago, I went on a quest for a copyof the writ that led me all the way tothe Court of Criminal Appeals. Withthe assistance of the municipalprosecutors listserv, TMCECdeveloped related forms that wereincorporated in the prosecutor’ssection of the 2004 TMCEC FormsBook. While presumably the jointapplication (see page 7) could be usedin defunct appeals stemming frommunicipal courts of record, forreasons previously stated in this article,it is not applicable in perfected appealsstemming from non-record courts.The State’s application, on the otherhand, can be used regardless if theappeal comes out of a record or non-record local trial court.1 Correct. See, Article 45.001 and 45.002,Code of Criminal Procedure.2 Italics added for emphasis.3 No, but please read on.4 Cavazos v. Hancock, 686 S.W.2d 284, 285(Tex. App. Amarillo 1985).5 Mann v. Brown, 516 S.W.2d 22 (Tex. App.Tyler 1974) citing Minchew v. State, 366S.W.2d 942 (Tex. Crim. App. 1963).6 Tex. Const. Art. V. Sect. 3 and 5.7 Tex. Const. Art. V. Sect. 16; Section

25.004, Government Code.8 Texas is one of only six states in thenation to utilize incidental appellatejurisdiction among its courts of limitedjurisdiction. U.S. Department of Justice,Office of Justice Programs, Bureau ofJustice Statistics, State Court Organization(1998).9 Article 44.17, Code of CriminalProcedure, instructs that the proceeding incounty court are conducted “as if theproceedings had been originallycommenced in that court.”10 Article 45.201(c), Code of CriminalProcedure.11 6 Tex. Jur. 3d Appellate Review Sect. 919(2003).12 358 S.W.2d 629 (Tex. Crim. App. 1962).13 346 S.W.2d 840 (Tex. Crim. App 1961).14 Id.15 649 S.W.2d 165 (Tex. App. El Paso 1983).

TexasOnlineTicketPay

TexasOnline, the State’s officialwebsite, provides the public a simple,safe and convenient means to paytraffic and parking tickets using theInternet. Currently, two municipalcourts—Houston and Mesquite—offer this secure online ticketpayment service. Using the Internet,citizens may pay fines, fees and mostother court assessments by enteringtheir ticket number(s) and credit cardinformation. TexasOnline issues thecitizen a receipt and confirmationnumber to verify that the paymenthas been received. To participate inthe TicketPay system, courts firstcontract with BearingPoint/TexasOnline and then provide ticketinformation including ticket number,case number and amount owed.TexasOnline handles the fundsprocessing and transfer. For moreinformation, visit the TexasOnlineTicketPay webpage atwww.texasonline.com or contactThomas Sparks at TexasOnline,512/542-5377.

B


WRIT OF PROCEDENDO

CAUSE NUMBER: _______________

STATE OF TEXAS § IN THE MUNICIPAL COURT VS. § CITY OF ______________________________________ § _________ COUNTY, TEXAS

On this the _____day of _________, 200__, the Court considered and granted the Application for the Writ ofProcedendo.

IT IS HEREBY ORDERED that the appeal in the above styled and numbered cause be abated, dismissed, andremanded to the Municipal Court of ______________, ________________ County, Texas, as a final judgment.

SIGNED this ______day of ____________, 200__.

______________________________Judge Presiding

ADDED 8/03


WRIT OF PROCEDENDO: JOINT APPLICATION

CAUSE NUMBER: _______________


TO THE HONORABLE JUDGE OF SAID COURT:

Now comes the undersigned Defendant and the State of Texas, by and through the City Attorney/Deputy CityAttorney/Designated Municipal Prosecutor, in applying for a Writ of Procedendo.

This application stems from the appeal of a conviction in the Municipal Court of _____________, Docket No.__________. Pursuant to a judgment in said cause, dated (insert date, name of month, and year) , the Defendant wasconvicted of the offense of __________________and ordered to pay fine and costs in the amount of $________. Thereafter,the Defendant appealed to this Honorable Court.

The Defendant now requests to abate and dismiss said appeal.

The State has no objection to dismissing the appeal and requests with the Defendant that the above styled andnumbered cause be dismissed and remanded to the Municipal Court of ______________, ________________ County,Texas, for the entry of a final judgment.

Wherefore, the undersigned parties now pray that this Application for a Writ of Procedendo be granted.

Respectfully submitted,

____________________________ _____________________________Defendant Pro Se Prosecuting Attorney

_____________________________Defense Counsel

ORDER

On this ______ day of ________, 200__ came to be heard the preceding Joint Application for a Writ ofProcedendo.

The application is HEREBY:

__________GRANTED __________DENIED

SIGNED this ____________ day of ____________________, 200__.

____________________________

Judge Presiding

ADDED 8/03


WRIT OF PROCEDENDO: STATE APPLICATION

CAUSE NUMBER: _______________


TO THE HONORABLE JUDGE OF SAID COURT:

Now comes the State of Texas, by and through the City Attorney/Deputy City Attorney/Designated MunicipalProsecutor, in applying for a Writ of Procedendo.

This application stems from the appeal of a conviction in the Municipal Court of _____________, Docket No.__________. Pursuant to a judgment in said cause, dated (insert date, name of month, and year) , the Defendant wasconvicted of the offense of __________________and ordered to pay fine and costs in the amount of $________. Thereafter,the Defendant appealed to this Honorable Court.

¨ The State now requests that the Defendant’s appeal be abated and dismissed for the following reason:

¨ The Defendant’s appellate bond is defective and invalid (Minchew v. State, 366 S.W.2d 942 (Crim.App.1963)).

¨ The Defendant’s appeal bond was not timely filed (Article 45.0426, Code of Criminal Procedure).

¨ The State has no objection to dismissing the appeal and requests with the Defendant.

Wherefore, the State now prays that this Application for a Writ of Procedendo be granted and that the abovestyled and numbered cause be dismissed and remanded to the Municipal Court of ______________, ________________County, Texas, for the entry of a final judgment.

Respectfully submitted,

____________________________Prosecuting Attorney

ORDER

On this ______ day of ________, 200__ came to be heard the preceding Joint Application for a Writ ofProcedendo.

The application is HEREBY:

__________GRANTED __________DENIED

Signed this ____________ day of _______________, 200__.

____________________________Judge Presiding

ADDED 8/03


step through the flowchart with me.

The Records Request

We receive a written request for “all ofthe traffic tickets in the court’s files thatwere written by Officer Kent Smith.”Officer Smith is employed by themunicipal police department.

Analysis

We begin with Step 1 – Request forrecord received. The request is in writing.We’re ready to move on to Step 2. Butwhat if the request had been oral? Thisis when a look at the online commentarythat accompanies the flowchart might bea good idea. A look at the commentaryassociated with Step 1 reveals that anoral request is okay, but we may want tohave the request reduced to writing for avariety of reasons. Don’t forget to usethe commentary as an aid.

Step 2 asks us our first question – Is therecord in the court’s custody? (Thequestions are in the unshaded boxes withrounded corners.) In this example, morethan one record is being requested. Sowe rephrase the question in plural form:“Are the records in the court’s custody?”(From this point forward, all of thequestions will be rewritten in pluralform.) The answer to this question is“Yes.” Officer Smith writes lots oftraffic tickets and they are interspersedthroughout many of the court’sindividual case files. Accordingly, wefollow the “Y” (Yes) arrow out of theStep 2 box and move on to Step 3. (Wedo not follow the “N” (No) arrow toStep 4.)

Step 3 states that the records are held bythe judiciary and that the PublicInformation Act (PIA) does not requirerelease of the records. The PublicInformation Act (formerly known as theOpen Records Act) is codified asChapter 552 of the Texas GovernmentCode. The PIA requires a “governmentalbody” to release records (subject tocertain exceptions). The important thingfor municipal judges to know is that the

term governmental body is defined so asnot to include the judiciary. Accordingly,municipal courts, as a part of thejudiciary, are not one of thegovernmental bodies that the PIArequires to release records. So you reallydon’t need to know anything more aboutthe PIA. The PIA will never require amunicipal court to release a record thecourt holds.

Records held by the court are known as“records of the judiciary.”

Please note that sometimes a municipalcourt is asked for records that aremaintained by the court but that are alsomaintained by another entity. Forexample, perhaps the city policedepartment also has copies of the traffictickets written by Officer Kent Smith.The city police department is agovernmental body and is thereforesubject to the PIA. The flowchart we arefollowing is specifically designed formunicipal courts and not for municipalpolice departments or any other entity.The flowchart is concerned with howmunicipal courts must respond torecords request. How a different type ofentity is required to respond to requestsfor records is a separate topic.

So we have determined that the PIAdoes not require us to release the traffictickets written by Officer Smith. But thisis not the end of inquiry. While the PIAdoesn’t require release of the tickets,another law might. There are manydifferent sources of law requiring therelease of records and our analysis is notfinished just because we have concludedthat the PIA does not apply. Accordingly,we move on to Step 7.

Step 7 asks us whether the requestedrecords are accident reports. They arenot. The requested records are traffictickets. The reason we ask the question isthat a specific statute in theTransportation Code controls the releaseof accident reports. If the requestedrecords were accident reports, we wouldfollow the “Y” arrow to Step 8 andproceed to determine whether the

records need to be released. But becausethe requested records are not accidentreports, we follow the “N” arrow to Step14.

Step 14 asks whether the requestedrecords are juror information sheets.Again, this question is asked becausethere are specific statutes dealing with therelease of juror information. Because therecords requested here are not jurorinformation sheets, we follow the “N”arrow to Step 16.

Step 16 inquires whether the requestedrecords are affidavits in support of asearch warrant. If the records were suchaffidavits, we would follow the “Y” arrowwhich would require us to release therecords pursuant to a specific statestatute. But the records requested hereare not affidavits in support of a searchwarrant. Accordingly, we move on alongthe “N” arrow to Step 17.

A special statute deals with access toarrest warrants and affidavits in supportof arrest warrants. Thus, Step 17 asks ifthe requested records are arrest warrantsor supporting affidavits. Because they arenot, we follow the “N” arrow to Step 18.

Now we are at Step 18. We have gonethrough all of the questions (7, 14, 16and 17) asking if the requested recordsare the type of records subject to somespecific statute. We have determined thatthey are not. Now we ask whether therecords are “judicial records.”

The term “judicial records” is a term ofart. Recall that in Step 3 we determinedthat the traffic tickets written by OfficerSmith were held by the municipal courtand were therefore “records of thejudiciary” that were not required to bereleased by the PIA. One might initiallythink that the terms “judicial records”and “records of the judiciary” areidentical and are simply two ways ofsaying the same thing. But this is notcorrect. The two terms are different.

All records held by the municipal courtare “records of the judiciary.” Butrecords of the judiciary can be split into

Handling Requests continued from page 1


two groups. These two groups are (1)judicial records; and (2) court caserecords. So when Step 18 asks uswhether the requested records arejudicial records, we are being asked toidentify which of the two types ofrecords of the judiciary are beingrequested – judicial records or courtcase records. The reason the question isasked is that different rules apply toaccess to judicial records and access tocourt case records.

Rule 12 of the Rules of JudicialAdministration deals with access tojudicial records. (The Rules of JudicialAdministration are promulgated by theSupreme Court of Texas pursuant toSection 74.024 of the GovernmentCode.) Rule 12 does not deal in any waywith court case records. So what is thedifference between a judicial record anda court case record? Rule 12 answersthis question by defining the term“judicial record.” Rule 12.2(d) statesthat a judicial record is:

a record made or maintained by acourt or judicial agency in itsregular course of business but notpertaining to its adjudicativefunction, regardless of whetherthat function relates to a specificcase. A record of any naturecreated, produced, or filed inconnection with any matter that isor has been before a court is not ajudicial record.

Put plainly, a judicial record would besomething on the order of a personnelrecord or a telephone record that isheld by the court. Records that pertainto a specific case are not judicialrecords. Such records would be courtcase records.

The records requested in ourhypothetical situation (the traffic ticketswritten by Officer Smith) have to dowith particular court cases. Theserecords are not judicial records.Accordingly, Rule 12 does not apply.Consequently, we do not follow the “Y”arrow to Step 19. But this does not

mean our analysis is over. We havesimply determined that Rule 12 doesnot apply. We follow the “N” arrow toStep 42.

Step 42 informs us that the requestedrecords are court case records. Wemove on to Rule 43.

Step 43 inquires as to whether therecords are records in a civil case. Onlyrarely will the court case records of amunicipal court be records in a civilcase. The flowchart deals with such anunusual situation in Step 44. But in ourhypothetical situation, the traffic ticketswritten by Officer Smith deal withcriminal cases and not civil matters.Accordingly, we answer the question“No” and move to Step 48.

Step 48 states the general rule that isapplicable to the records in ourexample. The general rule is that arequestor is entitled to the requestedrecord under the common law right ofaccess to court records. Note that thisright is not embedded in either the U.S.Constitution or the Texas Constitution.The right is not codified by any statute.Neither Rule 12 nor any other rule ofcourt creates this right. Rather, the rightof access to court records is a commonlaw right that has been expresslyidentified by the United States SupremeCourt in the case of Nixon v. WarnerCommunications, Inc., 435 U.S. 589, 597,98 S.Ct. 1306, 1312, 55 L.Ed.2d 570,579 (1978).

Under the general rule stated above, theperson requesting the traffic ticketswritten by Officer Smith is entitled toaccess the tickets. But we must move onto Step 49 to see if there is anyexception to this general rule.

Step 49 asks whether the records, ifreleased, would become a vehicle forimproper purposes. When the UnitedStates Supreme Court identified thecommon law right of access to courtrecords in the Nixon case, the Courtdeclared that the right was not absolute.The Supreme Court suggested that

courts are not required to release courtcase records if the records mightbecome vehicles for improperpurposes. The Supreme Court alsosuggested that the “decision as toaccess is one best left to the sounddiscretion of the trial court.”

My personal opinion is that thesituation would have to be exceptionalbefore a municipal court should refuseto release records because the recordsmight become vehicles for improperpurposes. There appears to be nothingexceptional in our hypothetical requestfor the traffic tickets written by OfficerSmith. Accordingly, we should answerthe question posed in Step 49 in thenegative and follow the “N” arrow on along, circuitous route (around the edgesof the flowchart) to Step 12.

Step 12 tells us that the traffic ticketswritten by Officer Smith need to bereleased. But before releasing thosetickets, we need to determine whetherany information contained in the ticketsneeds to be redacted.

Note that the flowchart forces us to askthe proper questions in the properorder. The first thing we need todetermine in any analysis of a recordsrequest is whether the record must bereleased. Only if we determine that therecord must be released do we reach thequestion of whether certaininformation (such as social securitynumbers) needs to be redacted fromthe record.

We move out of Step 12 to Step 50.

Step 50 asks whether the recordscontain any social security numbers.Some traffic tickets may contain socialsecurity numbers and some may not. Acheck of the tickets will answer thequestion. Let’s assume that at leastsome of the tickets contain socialsecurity numbers. Accordingly, wefollow the “Y” arrow to Step 51.

Step 51 asks whether the social securitynumbers were obtained or maintainedpursuant to a law enacted after October


1, 1990. We ask this specific questionbecause not all social security numberson municipal court records areconfidential. Some social securitynumbers are confidential and must beredacted. Other social security numbersare not confidential and need not beredacted.

Federal law provides as follows:

Social security account numbersand related records that areobtained or maintained byauthorized persons pursuant to anyprovision of law enacted on orafter October 1, 1990, shall beconfidential, and no authorizedperson shall disclose any suchsocial security account number orrelated record.1

Accordingly, if a social security numberappears on the requested record (in thiscase, a traffic ticket written by OfficerSmith) because a law enacted on orafter October 1, 1990 requires the socialsecurity number to appear on therecord, then the social security numberis confidential and cannot be released.If, on the other hand, a social securitynumber appears on a documentbecause a law enacted prior to October1, 1990 requires the social securitynumber to appear on the document (orif there is no requirement that thesocial security number appear on thedocument at all), then the social securitynumber is not confidential and can bereleased.

Generally, there is no requirement that asocial security number appear on atraffic ticket. However, Section 543.201of the Texas Transportation Coderequires municipal courts to keep arecord of each case in which a person ischarged with a violation of lawregulating the operation of vehicles onhighways. Section 543.202 states that ifthe person charged with the violationwas operating a commercial motorvehicle or was the holder of acommercial driver’s license orcommercial driver learner’s permit, then

the record must contain the person’ssocial security number. These legalrequirements were enacted in 1995.Accordingly, a social security numbercontained within a record of a trafficcase (such as a social security number ona traffic ticket) is considered to beobtained or maintained pursuant to alaw enacted on or after October 1, 1990.

If any of the traffic tickets written byOfficer Smith containing social securitynumbers are in cases where the driverwas operating a commercial motorvehicle or where the driver held acommercial driver’s license or learner’spermit, the answer to the question inStep 51 is “Yes” (i.e., the social securitynumbers were obtained or maintainedpursuant to a law enacted on or afterOctober 1, 1990). In regard to thoseparticular tickets we move to Step 52.For those tickets written in cases notinvolving a commercial driver’s licenseor learner’s permit, we would movefrom Step 51 to Step 53. Let’s followthe path for those tickets that need tohave social security numbers redactedand go to Step 52.

Step 52 requires that social securitynumbers be redacted from the tickets.After redacting the social securitynumbers, go to Step 54.

Step 54 inquires as to whether therecord contains any informationidentifying a crime victim. If the recorddid contain such information, theinformation would have to be redacted.But in our hypothetical case, the traffictickets would be unlikely to contain anycrime victim information. Accordingly,we answer the question “No” and go toStep 56.

Step 56 is the final step in our process.We have determined that the traffictickets must be released. Some of thetickets have had social security numbersredacted from them. Now we release therecords upon proper payment.

What is proper payment in this case? Asthe commentary to Step 56 points out,

there are no set fees that are to becharged in connection with providingcourt case records. The cost of copyingmust be provided by municipalordinance (Sec. 552.266, G.C.), which inturn may comply with the amountsprescribed by the Texas Building andProcurement Commission (TBPC),formerly General ServicesCommission, for providing publicinformation. (Sec. 552.262, G.C.) Let’ssee how the TBPC guidelines wouldwork in our example.

As mentioned earlier, the traffic ticketswritten by Officer Smith are notlocated in one particular file. Rather,the tickets are interspersed throughoutthe court’s files. The fact that therequest is for lots of tickets and the factthat the tickets are not convenientlylocated in one file does not mean thatwe don’t have to release the records. Wemust treat the request for all of thetickets written by Officer Smith thesame way we would treat a request forone particular ticket written by OfficerSmith. But we can charge for the timeinvolved in pulling these recordstogether, checking the records forredaction purposes, redacting certaininformation from the records andcopying the records. The charge thatmay be assessed for these personnelcharges is $15 per hour.

(Please note, however, that personnelcharges are not to be assessed inconnection with requests for 50 orfewer pages of paper records unlessthat documents to be copied arelocated in: (1) two or more separatebuildings that are not physicallyconnected to each other; or (2) aremote storage facility.

Suppose that the time involved infinding and preparing these records was20 hours. We could charge $300 (20hours multiplied by $15). This would bethe personnel charge. Whenever apersonnel charge is assessed, anoverhead charge of 20 percent of the

Handling Requests continued on page 14


personnel charge can also be assessed.This would be $60 (20 percent of$300).

Let’s also suppose that we found 300tickets written by Officer Smith. Eachticket is a single page. We make a copyof each ticket to provide to therequestor. The suggested charge is 10cents per page. Thus, we can charge $30(10 cents per ticket multiplied by 300tickets) for the copying.

The total charge would be $390 ($300personnel charge plus $60 overheadcharge plus $30 copying charge).

A good practice is to estimate the costsup front and let the requestor know

how much obtaining the records willcost at the time the request is made.(Admittedly, an estimate in the examplewe have just worked through may bedifficult.) This is not done to discouragethe requestor (sometimes this will causethe requestor to drop or narrow therequest), but rather to fully disclose theapproximate amount the requestor willhave to pay. While we ought to behelpful to requestors and fully complywith the laws requiring access to courtrecords, there is no requirement that therecords be provided free of charge or ata loss to the municipality.

SummaryI hope this walk through a samplerecords request has illustrated how the

flowchart works. I believe theflowchart can be a helpful tool inanalyzing your next records request.On some requests, you may certainlywant to visit with your city attorneyabout the proper course of action.Your city attorney may find theflowchart and commentary to behelpful as well.Please feel free to contact me with anyquestions you may have. I can bereached by telephone at 512/936-1183and by e-mail [email protected].______________________1 42 U.S.C. Section 405(c)(2)(C)(viii)(I)(2003).

FROM THE CENTER

MottoContest!

TMCEC needs a motto! We arelooking for a phrase or saying toinspire our work. It would be placedon TMCEC book bags andpromotional materials. If you have anidea, please send it to Hope Lochridgeat 1609 Shoal Creek Blvd., Suite 302,Austin, Texas 78701, or email [email protected]. The winningsubmission will receive a TMCECduffel suitcase on wheels (valued at$50)!

Note: According to Webster’sDictionary, a motto is “1. a sentence,phrase or word inscribed onsomething as appropriate to orindicative of its character or use; 2. ashort expression of a guidingprinciple.”

Correction toJuvenile

Expunction FormThank you Judge Mitch Solomons forsubmitting a correction to theApplication for Expungement PenalOffenses form. The corrected form isfound on page 17 of this newsletter.The original form had an error in thestated age of the petitioner. Please

insert a copy of the new form in yourForms Book – page 175.

TMCEC ProductsOnline

TMCEC t-shirts, totes, caps, koozies,books, videos and ties may now bepurchased by mail. An order form maybe downloaded from the TMCECwebsite: www.tmcec.com/products.htm.

Keep a Look Out!TMCEC will be sending onecomplimentary copy of the recentlyrevised TMCEC Bench Book to everymunicipal judge. The publicationshould be arriving at the courts inlate May. Please contact TMCEC ifyou have not received your copy byJune 1st.

Handling Requests continued from page 11

B


RESOURCES FOR YOUR COURT

Rule 12 Decision SummariesRule 12.9 of the Rules of Judicial Administration provides that a person who is denied access to a judicial record may appealthe denial by filing a petition for review with the administrative director of the Office of Court Administration. A specialcommittee of presiding judges is selected to review the petition. Rule 12.2(d) defines a judicial record as one made or maintainedby or for a court in its regular course of business, but not pertaining to its adjudicative function. “A record of any naturecreated, produced or filed in connection with any matter that is or has been before a court is not a judicial record.” Shownbelow is a list of decisions made by the special committees since 1999. The text of these decisions may be accessed on thewebsite of the Office of Court Administration: http://www.courts.state.tx.us/openrecstate.asp#rule12.

Decision No. Date Issued Summary of Decision

03-008 PDF | HTML 1-23-04 Investigative file of Commission on Judicial Conduct not “judicial records.”

03-006 PDF | HTML 10-21-03 Custodians of judicial records provided required access.

03-005 PDF | HTML 10-16-03 Docket sheets of a municipal court are not judicial records.

03-004 PDF | HTML 8-18-03 Records related to municipal court cases are not judicial records.

03-003 PDF | HTML 8-18-03 Misdemeanor convictions are not judicial records.

03-002s PDF | HTML 8-18-03 Portions of complaints that reflect confidential information should be withheld.

03-002 PDF | HTML 7-16-03 Copies of complaints filed against a municipal judge are open.

03-001 PDF | HTML 4-24-03 Access to inquest records governed by statutory law, not Rule 12.

02-005 PDF | HTML 12-23-02 Traffic citations not “judicial records.”

02-004 PDF | HTML 11-06-02 Oaths of office and anti-bribery statements not in judge’s custody.

02-003 PDF | HTML 06-28-02 Records of administrative judge “intended to instruct, assist or guide judges inthe exercise of their contempt power” are “judicial records.”

02-002 PDF | HTML 06-17-02 Traffic citation records not “judicial records.”

02-001 PDF | HTML 06-07-02 Judge who did not have records relating to investigation and consultation shouldhave attempted to determine custodian and notified requestor.


01-003 PDF | HTML 06-22-01 Trial record in court of appeals not “judicial records.”


01-001 PDF | HTML 05-31-01 Appeal not timely from denial of access to judicial recordsof county communitysupervision and corrections department.

00-007 PDF | HTML 12-19-00 Court’s denial of a fee waiver did not include the required language aboutreasons for denial, the right to appeal, and the OCA director’s name and address.

00-006 PDF | HTML 10-25-00 Visiting judge records were “judicial records;” judge did not refer request toproper custodian.

00-005 PDF | HTML 10-23-00 Records of associate judge retention committee were “judicial records,” butwere exempt from disclosure.


Decision No. Date Issued Summary of Decision

00-003 PDF | HTML 04-27-00 Names of individuals on community supervision/probation in eight countiesare not “judicial records.”

00-002 PDF | HTML 04-10-00 Records custodian not required to respond to request from prisoner.

00-001 PDF | HTML 02-07-00 Traffic citation records not “judicial records.”

99-002 PDF | HTML 01-14-00 “Judicial records” of unauthorized practice of law committee were exempt fromdisclosure.

99-001 PDF | HTML 08-31-99 “Judicial records” of unauthorized practice of law committee were exempt fromdisclosure.

Each year on May 1st,Law Day provides anopportunity foreveryone to reflect onour legal heritage, therole of law, and therights and duties thatare the foundation ofpeace and prosperityin this country. LawDay 2004 will

celebrate the 50th anniversary ofBrown v. Board of Education. Bycommemorating this historic case inBrown, Law Day can help illuminate themeaning of equality in our democracyand the role of law, advocates andcourts in establishing and protectingour rights. The 1954 Brown ruling heldthat the U.S. Constitution did notallow laws segregating public schoolsby race.

In the late 1950s, the American BarAssociation instituted May 1 as LawDay to draw attention to both theprinciples and practice of law and

Criminal LawWhen asked to speak to community and school groups, judges and clerks sometimes need to know the “bigger” picture ofwhat is happening in the field of criminal justice.

One way is to browse the Texas Law Blog (http://texaslaw.blogspot.com). This is a web log devoted to Texas law, legalissues and politics. The site monitors the U.S. Supreme Court, 5th Circuit, Texas Supreme Court, Texas Court of CriminalAppeals, various courts of appeals, Texas Legislature, major Texas newspapers, and legal websites. Quotes and summariesof articles and cases are included.

justice. President Dwight D.Eisenhower established Law Day byproclamation in 1958. The ABAwebsite offers many resources to help

schools, courts and local barassociations celebrate locally(www.abanet.org/publiced/lawday/guidemain.html).

Law Day 2004


APPLICATION FOR EXPUNGEMENT PENAL OFFENSES (Art. 45.0216, C.C.P.)

CAUSE NUMBER: _______________


Now, comes ______________________________________ convicted of the offense of _______________________________on the ____________ day of ______________________, 200__ in the _______________________ Municipal Court in CauseNumber _____________________________.

Petitioner is now at least the age of seventeen (17) years.* Petitioner, being duly sworn, states under oath that he/she has notbeen convicted of any other misdemeanor punishable by fine only other than public intoxication or violation of a penal ordinance ofa political subdivision.

Petitioner requests that all records of said conviction be expunged pursuant to Article 45.0216, Code of Criminal Procedure,and the Court order expungement of all documents, records, and references thereof and release ____________________________from all disabilities resulting from said conviction. Petitioner further requests that said conviction may not be shown or made knownin any manner for any purpose. Attached to this petition is a list of agencies, officials, and others who have records or files regardingthis conviction.

___________________________________

Defendant-Petitioner

Sworn and subscribed before me by ________________________________, a credible person, on this __________ day of_____________________, 200___.

______________________________________________________

(Deputy Clerk)(Clerk)(Notary Public in and for the State of Texas)

(municipal court seal ornotary public seal if swornbefore a notary public)

REV. 05/04*


Registration now open, and scholarships available. For moreinformation, call 800/255-8343, email [email protected],or access the website at www.judges.org. Course applicationsare available at www.judges.org/downloads.

Please share this message with colleagues who may benefitfrom this training!

Co-occurring Mental and SubstanceAbuse DisordersSeptember 20-23, 2004Reno, NVTuitin: $945 / Early Discount $845 by 6/22/04Conference Fee: $190

The issues in many criminal cases involve alcohol and otherdrug addictions. Some persons with alcohol and drugaddictions also suffer from major mental health disorders.Judges who handle such cases should have a thoroughunderstanding of substance abuse, mental health and co-occurring disorder issues as they affect the justice system.After taking this course, participants will be able to describethe physiological and pharmacological aspects of substanceabuse; identify and assess individuals with major mentaldisorders; select appropriate judicial strategies and tools for

The National Judicial College PresentsProblem Solving Courses

treatment and monitoring; and design a plan for implemen-tation of systems or ideas to address co-occurring disorderissues.

Managing Cases Involving Persons withMental DisabilitiesOctober 13 - 14, 2004Reno, NVTuition: $550.00 / Early Discount: $500.00 by 07/13/2004Conference Fee: $115.00

Unfortunately, persons with mental disabilities are too oftencaught in a revolving door, coming in contact again andagain with the justice system. Such contact may be throughthe criminal docket for issues such as substance abuse orminor public infractions, through the probate docket whena family member must step in to assist or through thefamily docket when problems, usually related to the disabil-ity, arise. This course is designed to provide judges with anunderstanding of mental health issues that affect and areaffected by the justice system. After attending this course,participants will be able to identify and assess individualswith mental health disorders and employ judicial strategiesto address mental health issues.

Remaining TMCEC FY04Academic Programs

Dates School Hotel/City Address & Telephone

6/15-16/04 Special Topics Judges (Magistrate)/ Hyatt Regency Austin 208 Barton Springs 78704Court Administrators 512/477-1234

6/24-25/04 Bailiffs and Warrant Officers Inn of the Hills Kerrville 1001 Junction Highway 78028830/895-5000

7/6-7/04 12-Hour Regional Judges/Clerks Camino Real El Paso 101 S. El Paso Street 79901915/534-3000

7/19-23/04 32-Hour New Judges/Clerks Lakeway Inn Austin 101 Lakeway Drive 78734512/261-6600

7/30-8/1/04 Level III Clerk Certification Doubletree Dallas 8250 North Central Expy 75206Assessment Clinic Campbell Centre 214/691-8700


TMCEC 2003-2004 REGISTRATION FORM

Program Attending: ________________________________ Program Dates: _____________________________ [city]

r Judge r Clerk r Court Administrator r Bailiff/Warrant Officer* r Prosecutor

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

Last Name: _______________________________ First Name: _____________________________ MI: ________Names also known by: ______________________________________________ Male/Female: ______________Position held: __________________________________________________________________________________Date Appointed/Elected/Hired: _____________________________________ Years Experience: ________________Emergency Contact: ___________________________________________________________________________

HOUSING INFORMATIONTMCEC will make all hotel reservations from the information you provide on this form. TMCEC will pay for a single occupancyroom at all seminars: four nights at the 32-hour seminars and two nights at the 12-hour seminars. To share with another seminarparticipant, you must indicate that person’s name on this form.

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

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

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

Date arriving: ____________________ Arriving by: r Car r Airplane r Smoker r Non-Smoker

COURT MAILING ADDRESSIt is TMCEC’s policy to mail all correspondence directly to the court address.

Municipal Court of: _________________________ Mailing Address: _______________________________________________City: _____________________________________ Zip Code: _______________________ Email: ________________________Office Telephone #: _________________________ Court #: _________________________ FAX #: ____________________Primary City Served: ________________________ Other Cities Served: ____________________________________________

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

Status: r Presiding Judge r Associate/Alternate Judge r Justice of the Peace r Mayorr Court Clerk r Deputy Clerk r Court Administrator r Bailiff/Warrant Officer*r Prosecutorr Assessment Clinic (A registration fee of $100 must accompany registration form.)r Other: ______________________________________________

*Warrant Officers/Bailiffs: Municipal judge’s signature required to attend Bailiff/Warrant Officers program:

Judge’s Signature _______________________________________ Date: ___________________________Municipal Court of ________________________________________________________________________

I certify that I am currently serving as a municipal judge, city prosecutor, or court support personnel in the State of Texas. I agree that I will be responsible for any costsincurred if I do not cancel five (5) working days prior to the seminar. If I have requested a room, I certify that I live at least 30 miles from the seminar site and have readthe cancellation and no show policies in the General Seminar Information section located on pages 16-17 in the Academic Schedule. Payment is required ONLY for theassessment clinics; payment is due with registration form. Participants in the assessment clinics must cancel in writing two weeks prior to seminar to receive refund.

_____________________________________________________ __________________________ Participant Signature Date


CLERK’S CORNER

CLE

RKCORNER

Appeals are handled differently innon-record municipal courts thanappeals in municipal courts of record.The Municipal Court Recorder addressedsome of the differences in the March2003 issue. That issue presentedchecklists regarding appeals for bothtypes of courts. This column does notaddress the procedures in thechecklists but does talk about otherappeal issues frequently asked onTMCEC’s 800 line. The topicsincluded here are appeals ofconvictions of city ordinances,appeals after failure to complete adriving safety course or terms ofdeferred disposition, and whathappens when the appeal bond is lateor the fine is already paid when anappeal bond is filed.

Ordinances

Myth

Defendants convicted of violationsof municipal ordinances do not havethe right to appeal.

Fact

Defendants have a right to appealconvictions of any type of offensefiled in municipal court.

Article 44.02, C.C.P., provides that adefendant in any criminal action hasthe right of appeal. Violations ofmunicipal ordinances are criminaloffenses. Hence, a defendantconvicted of violating a municipalordinance has the right to appeal theconviction.

Appeals – Myths and FactsBy Margaret Robbins, Program Director, TMCEC

Driving Safety Course

Myth

Defendants who fail to complete drivingsafety courses do not have a right to anappeal.

Fact

Defendants may appeal a conviction afterfailing to complete a driving safety course.

When a court grants a driving safetycourse, the court enters judgment on theplea of guilty or nolo contendere. Thecourt, however, defers imposition of thejudgment for 90 days. Hence, there isnot a final judgment and, therefore,nothing to appeal.

In a non-record municipal court, when adefendant does not complete the drivingsafety course or fails to present evidencetimely and the court imposes thejudgment, there is now a conviction thatthe defendant may appeal.

If a defendant in a record municipalcourt fails to complete a driving safetycourse, the defendant may appeal thejudgment of conviction only withpermission of the court. Article 44.02,C.C.P.

Deferred Disposition

Myth

Defendants who fail to complete theterms of deferred disposition cannotappeal.

Fact

Defendants who fail to complete theterms of deferred disposition areassessed a fine and have the right toappeal.

Before a court may grant deferreddisposition under Article 45.051,C.C.P., the defendant must make aplea of guilty or nolo contendere, or theremust be a finding of guilty. Thisstatute, unlike the driving safetycourse statute, does not require thecourt to enter a judgment and deferimposition of the judgment beforegranting deferred. Initially, the courttakes the plea, collects court costs, andthen grants deferred disposition. If, atthe end of the deferral period, thedefendant fails to comply with theterms of the deferred, the court mayimpose the fine assessed or impose alesser fine.

You are probably confused now.Article 45.051, C.C.P., does not requirethe court when granting deferred toassess a fine. Subsection (d) of Article45.051, however, presumes that thecourt, upon accepting the plea orguilty or nolo contendere or upon afinding of guilt, assessed a fine whendeferred was granted although therewas no judgment.

When a defendant fails to comply withthe terms of the deferral, the court isrequired to assess the fine. In a non-record municipal court, since theorder assessing the fine would be afinal order of the court, theassessment of the fine could beappealed.

If a defendant in a record municipalcourt fails to complete the terms ofdeferred disposition, the defendantmay appeal the assessment of the fineonly with permission of the court.Article 44.02, C.C.P.


Bond Filed Past the TimeLimit

Myth

If an appeal bond is presented past thetime deadline, the municipal court canrefuse to file the bond and not allowthe appeal.

Fact

Municipal courts may not refuse toaccept and file an appeal bond, even ifit is past the time limitation, and thecourt must forward the appeal to theappellate court.

If a bond is not filed within thestatutory time limitations, Article45.0426(b), C.C.P., requires theappellate court to remand (send back)the case to the municipal court.Consequently, in order for theappellate court to send the case back tothe municipal court, the municipalcourt must accept the appeal bond andsend the case to the appellate court.The appellate court makes the decisionwhether or not to accept the appeal,not the municipal court.

Once the appeal goes to the appellatecourt, the court must send the caseback to the municipal court. Theappellate court uses the writ of

procedendo to send the case back. SeeRyan Turner’s article in this newsletteron page 1 for information on the writof procedendo.

Fine Is Paid

Myth

A defendant making payments on afine and costs may not appeal theconviction because the fine has beenpartially paid.

Fact

If a defendant files an appeal bondafter partially paying the fine and costsassessed, the court must accept thebond and forward the appeal to theappellate court.

If a defendant voluntarily and fullysatisfies a judgment by paying theentire fine and costs, the case isterminated and the appeal is moot.1 Acase is “moot” when a determinationis sought on a matter that, whenrendered, cannot have any practicaleffect on the existing controversy (theappeal). In other words, the appealpresents no actual controversy becausethe issues have ceased to exist uponpayment of the judgment. The key tothis issue is that the fine and costs arefully paid. If the fine and costs are

only partially paid, an issue may stillexist that may be appealed.

There is an exception if the plea orpayment were coerced or made underduress and not made voluntarily. Inthis instance, the defendant has notlost the right to appeal.2

Regardless of whether the fine andcosts are fully paid or not, themunicipal court should allow adefendant to appeal. The municipalcourt may not make a decision for theappellate court whether the appellatecourt will take jurisdiction.

Conclusion

The Texas Court of Criminal Appealshas characterized the role of the courtclerk in the appellate process as beinga mandatory ministerial duty and not amatter within the discretion of theclerk.3 Hence, municipal court clerksdo not have discretion to refuse to fileappeal bonds and must send allappeals to the appellate court.

______________________

In April 2004, the Texas Departmentof Public Safety will begin allowingthe public to complete an applicationto order a copy of their drivingrecord via the Internet. TheDepartment provides driving recordinformation for Texas licensees whomay need this for employmentpurposes, deferred adjudication ordefensive driving courses as orderedby a court.

Order DPS Driving Records OnlineType 1, Type 2, Type 2A, Type 3, Type3A (Certified Complete 5-year HistoryRecord which is the only acceptablerecord type that may be used inconjunction with a defensive drivingcourse for deferred adjudication), and aCertified Abstract of Driving Recordmay all be ordered online. Only thelicensee may purchase a driving recordusing this application. Upon successfulrequest and payment of the drivingrecord, the printed record will be

postal-mailed to the licensee.

The fee for all records ordered onlinewill be the current Department ofPublic Safety statutory fee for suchrecords plus an additional $2. Utilizingthis new application will significantlyreduce processing time. The servicecan be accessed by visiting www. texasonline.com, the official website of theState of Texas, or the TexasDepartment of Public Safety website atwww.txdps.state.tx.us.

1 Fouke v. State 529 S.W.2d 772 (Tex. Crim.App. 1975)2 Hogan v. Turland, 430 S.W.2d 720 (Tex.Civ. App.-Austin 1968)3 Whitsitt v. Ramsay, 719 S.W.2d. 333 (Tex.Crim. App. 1968)

B


10. Be visible. The appearance ofa uniformed professional addsto the decorum and authorityof the court. Humans arenatural mimics; in thecourtroom, your demeanor andattitude are likely to be followedby others who are not sure howto act. People who intend to doharm are very aware of securityand authority. Your presenceassures the aggressive powergrabber that there is no powervacuum in your court. Thebailiff ’s high visibility alsoreassures court staff, witnesses,victims and other nervous courtparticipants.

9. Keep the bail. The originalbailiffs were responsible forsafekeeping property in disputein trial. One security issue inmunicipal courts involvesmaking sure the property of thecourt and funds in court areprotected. Treat the courtroomlike it is placed in your care.Abuse of furnishings andfixtures quickly turns to abuseof personnel. Make sure thecourtroom is treated withrespect, and it leads to the courtbeing treated with respect.

8. Handle exhibits. In countyand district courts, this is theresponsibility of the courtreporter. But, in non-recordcourts and record courtswithout court reporters, this is a

bailiff responsibility. Make surethat evidence introduced oroffered is secured. Take specialcare that only exhibits that areadmitted by the court go to thejury room or the jury box.Trials are serious occasions;items carefully admitted shouldnot be left haphazardlycluttering the courtroomovernight or during breaks. Thejury is entitled to be furnishedadmitted exhibits duringdeliberation. Art. 36.25, C.C.P.

7. Handle jury notes. If thejury wants to ask questions tothe court during deliberations,the questions should bereduced to writing. Art. 36.27,C.C.P. The bailiff should takethe question and present itdirectly to the court. Neitherside should get sneak peeks.The bailiff should alsosummon the defendant andprosecutor before the courtreceives a question. The judgemay answer the question infront of the jury or send awritten response through thebailiff.

6. Enforce decorum. Keep aneye on everyone in thecourtroom. Make sure dress,conduct and attitudes areappropriate. Sometimes, evenstaff needs a reminder thatguests (jurors) are present. Beaware of potential disruptions.

Tempers can fly in court. Thebailiff subtly moving closer tothe court participant workingup to blow off steam oftenprevents an outbreak.

5. Secure witnesses. A bailiffhas a duty to secure witnessesunless they are released by thecourt. Art. 36.05, C.C.P. Makesure there is a place outside thecourtroom for witnesses.Remember that it is often wiseto separate victims and defensewitnesses for the safety ofboth. Special care and planningshould be made in domesticviolence cases. Victims have aright to a secure and separatewaiting area. Art. 56.02(a)(8),C.C.P. Provide a place andprocedures to make surewitnesses placed under “TheRule” (Rule 614, Rules ofEvidence and Art. 36.03,C.C.P.) do not talk about theirown or other witnesses’testimonies with anyone exceptthe prosecutor or the defenseattorney/pro se defendant.

4. Provide information toparties and witnesses.Judges must take great care toavoid private conversationswith any party or witness; theyalso appropriately avoid eventhe appearance of givingadvice. The bailiff should alsobe very zealous in avoiding theappearance of favoritism to any

Top 10 Things for Bailiffs to Do During TrialOther than Catching Up on Sleep

By W. Clay Abbott, General Counsel, TMCEC

COURT SECURITY


person or givingadvice to parties.Pro se defendantsare often speciallyin need of adviceand counsel, but itis absolutelyimproper for thebailiff to give it.

On the otherhand, who better than thebailiffthe second-most visibleauthority in the courtroomtoask about how court proceeds?Even frequent courtparticipants often take forgranted that they know what todo in a courtroom. Bailiffsshould be traffic directors,schedule keepers, and etiquetteand decorum experts. Bailiffsare a natural and proper sourceof information on court rulesand procedures. Yet, bailiffsshould never be legal advisors,counselors, advocates orconfidants.

Even prosecutors and defensecounsel can use logistic supportand help on the use of courtfacilities, technology, and localrules and customs. A wise trialattorney once taught me that aconversation with the court’sbailiff on security, rules, andlogistics was an essential step intrial preparation.

3. Provide information tojurors. There is nothing asstressful as being stuck in anunfamiliar place. Where are therestrooms? Places to eat? Paytelephones? Parking? Thebailiff can reduce the stress ofjury service by being a readysource of mundaneinformation. Certaininformation about courtprocedures is also appropriate.“Trials usually last one day.”

“No, this court usually does notsequester.” “We will takefrequent breaks.” The bailiff isin a unique position to providecalming knowledge in astressful situation. Hollywoodcreates a huge number ofmisconceptions about courtand trial. The bailiff can be agreat help in providing realinformation.

The bailiff should not discussthe cases, parties, or counsel.Any instruction on the law orlegal issues must come from thecourt. Cases have been reversedwhere an overly helpful bailifftried explaining legal issues.

2. Keep the jury and juryroom secure. The only dutyassigned to bailiffs by law is “toattend the wants of the jury andact under the direction of thecourt.” Art. 36.24, C.C.P. Jurydeliberations are secret. Noone, including the bailiff,should be present during orlistening to jury deliberations.Arts. 36.215, 36.22 and 36.23,C.C.P. Violations of this ruleare punishable by contempt.Jurors must be provided withseparate bathrooms, necessaryfood and lodging, and may notbe furnished alcoholicbeverages. Art. 36.21, C.C.P.(Needless to say, there have tobe some great stories behindsome of these rules.) Thebailiff acts as the gatekeeperand guard against intentional orinadvertent interruption,influence or invasion duringjury deliberation. The bailiffshould do homework makingsure that the place the jurydeliberates is secure. Check orlock extra doors, and make surethe deliberations will beuninterrupted.

1. Keep the judge and jurysafe. Security should always bethe highest concern of thebailiff. Physical harm, threatsand inappropriateconfrontation should beprevented. Be aware and beproactive. Never believe that itcannot happen in your court. Ihave seen violence break out incourtrooms and have beenlucky to always see quick andprofessional responses frombailiffs. During trial, keepaware of verbal and non-verbaldirection from the court.

The bailiff ’s obligation doesnot end with the trial. Trialscan be very traumatic forparticipants. Guilty verdictscan inspire some very hostileresponses. Not guilty verdictscan too. Watch all of the folksat a trial, not just thedefendant. As a prosecutor, Ihave been attacked by moresaintly little mothers than bigbad defendants.

Escort your jurors and judgeto their vehicles following atrial. Many disgruntledparticipants think court rulesstop at the court doors andwill wait to confront or harmyour charges as they leavecourt. Let jurors know that ifthreatened, they are to informboth you and the policeimmediately. If jurors arethreatened or harmed,prosecute! We are a nation oflaws. When this line isbreached, we are all at themercy of the mostreprehensible of us.B


COLLECTIONS CORNER

Collections Tool: Skip TracingBy Don McKinley, Assistant Collections Specialist, Office of Court Administration

Hopefully, you found last month’s articleon telephone collections beneficial. Nocourt collection effort should overlookutilizing the telephone. This month ourfocus is on skip tracing. Skip tracing is acollections industry term for attemptingto locate people who seem to havedisappeared. A skip trace situation existswhen there is no way to establishcontact with an individual. For example,mail is returned, the telephone isdisconnected, or the telephone numbersare wrong. If this occurs, what do youdo? Issue a warrant? File the case withOmniBase? Or just file the case awayand hope that law enforcement caneventually locate the individual? This nolonger needs to be the end of the road.Equipped with the right connectionsand tools, just about anyone can belocated.

Carefully review the case record andcitation to see if there are any differenttelephone numbers (including cell phonenumbers) or other contact informationlisted. Develop a good relationship withlocal law enforcement and use them as aresource to assist in clearing warrants.City and county law enforcementdatabases may provide information thatwill help locate someone. Establishcontacts with utility departments forcurrent addresses or telephone numbers.In addition, the local county taxassessor-collector is often a good sourcefor information.

Another possible source of informationis the local cable company. Video stores,such as Blockbuster or HollywoodVideo, may also be a good source ofinformation for addresses and telephonenumbers.

Look for employment information. Ifan employer or company name is

available, a quick search may be possibleusing the Yellow Pages. If you have anindividual’s social security number, youcan get employment information fromthe Texas Workforce Commission for asmall fee. The Texas WorkforceCommission may be contacted by mailat 101 East 15th Street, Austin, Texas78778, or by telephone at either 512/463-2748 or 512/463-2423.

With a social security number, justabout anyone can be located. With theInternet and a little money, you canusually find an individual’s address,telephone number, and other personalinformation.

The Internet offers sites that are freeand sites with various fee structures. Itis important to know how much moneyhas been allotted in the budget for skiptracing. The old adage “it takes a littlemoney to make money” generally holdstrue for Internet searches.

One court experienced a return of $4back for every dollar spent on Internetsearches. In some cases, the return iseven higher. Using the Internet can alsoresult in lower costs for postage,supplies and labor.

Some Internet sites of interest are listedbelow. (The Office of CourtAdministration does not recommend orendorse any of the sites listed.)

Free Sites:

www.anywho.comwww.switchboard.comhttp://ssdi.rootsweb.com/cgi-bin/

ssdi.cgi (social security death index)Fee Sites:www.classmates.comwww.555-1212.comwww.freeality.com

www.dcsinfosys.comwww.publicdata.comwww.pac-info.comwww.theultimates.com (be sure to type

in “theultimates”—”theultimate” is acompletely different website)

www.accurint.com

These sites can help locate individuals.Remember, people usually pay bycontact not by contract. In other words,a signed contract does not guaranteepayment. Locating an individual andmaking contact (by telephone or bymail) may generate revenue for thecourt and provide a way to resolve acase. Skip tracing is an important stepin any successful collections program.If you would like additionalinformation, the Office of CourtAdministration (OCA) is available tohelp. We can assist you by providing acollections presentation and/or anevaluation of your court’s currentcollections process. We can also assistyou in developing a collections programor offer suggestions andrecommendations to improve yourcurrent collection efforts. There is nocharge for our assistance. Contact oneof OCA’s collections specialists at thetelephone numbers listed below.

Continued best wishes!______________________________

Don McKinley 512/936-7557OCA-Assistant Collections Specialist

Jim Lehman 512/936-0991OCA-Collections Specialist

Russ Duncan 512/936-7555OCA-Assistant Collections Specialist

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COURT TECHNOLOGY

Judges: Putting Technology to Work for YouBy Jo Dale Bearden, Program Coordinator, TMCEC

Many judges often ignore discussionson court technology. Technology tosuch judges is a job of the court clerkor court administrator, not the judge.Those of you who share this thought,give me a chance to dissuade you.Judges are responsible for theefficiency of the court.1 What is thepurpose of technology, if not topromote and encourage efficiency?Through technology as basic as apersonal computer and an Internetconnection, judges can drasticallyimprove the efficiency of the court.How? By using word processingfunctions, having access to onlineresources, and being able tocommunicate with other judges.

Word ProcessingWord processing in today’s world is notjust a software application; the phrasenow refers to an idea of how work isdone. Judges may use computers totake notes on cases while at the bench— those notes can be recordedstraight to a case file through the casemanagement software or in a separatedocument that the judge can refer to ata later date. A positive reason for usingcomputers to take notes is the abilityto search and find not only documents,but also text. For instance, if adocument is created with notes fromseveral cases saved under a name youcannot quickly recall, instead ofopening every document, a quick textsearch allows you to find thedocument via defendant names oroffenses, etc. If the court is using casemanagement software, a judge canimmediately access case files at thebench. No longer is there a need tosend a clerk to pull a file or reschedule

a case due to a lost file. If judges addnotes to the case file, they then haveimmediate access to those notes.

Judges may also work on jury chargesat the bench while the trial isprogressing. Many judges use atemplate for their jury charge includingthe basics, but having a jury chargeopen while the trial is in progressallows a judge to update the charge asthe issues arise. This practice has thepotential to decrease the amount oftime a citizen is at the court for a jurytrial—that dead time between bothsides resting and the reading of thejury charge.

Tablet PCs are a cross between alaptop and a piece of paper, creatingthe ability for handwritten notes to beturned into text, immediate applicationof signatures (digitally), and to applywritten data to documents that alreadyexist (either as handwritten text or astyped text). Tablet PCs are veryversatile, but the prices start at $1599.If applying a signature digitally is agoal of the court, there are lessexpensive options. Most casemanagement software packages andmany of the desktop publishingpackages will take a scanned signatureand password protect it. Then thejudge can apply his/her signaturethrough a cut and paste process.Another inexpensive option is to add asignature capture device to thecomputer at the bench. These devicescapture the signature and apply it tothe document immediately. Dependingon the technology, prices start ataround $60.2

Online ResourcesYou may be asking yourself “Whywould I need Internet access at thebench?” The ability to access theInternet while at the bench allowsjudges to access documents, files anddata that will improve the efficiency ofthe court. For example, a judge mayaccess from TMCEC’s website,www.tmcec.com, the 2004 TMCECForms Book or Bench Book. TMCEC alsohas many of the charts that arepublished in The Municipal CourtRecorder and in course materials on thewebsite, including the new court costscharts and the juveniles and minorscharts.

In addition, the Internet allows judgesto access statutes immediately fromTexas Legislature Online,www.capitol.state.tx.us. Whether youknow exactly what you need, or youneed to do a search for an issue, ALLcodes and statutes for the State ofTexas are available (including the TexasConstitution). Keep in mind that ifyou are working on a document thatneeds the exact wording from thestatute, you can do a cut and pastefrom Texas Legislature Online insteadof typing the entire statute.

The State Bar of Texas,www.texasbar.com, has a memberdirectory that is searchable by first andlast name and/or by bar number. Anew judge—or and old judge who seesa new face—can quickly find out if theattorney in front of the court is eligibleto practice law in the State of Texas.The Office of Court Administrationoffers an online judicial directory(http://data.courts.state.tx.us/OCA/DirectorySearch.aspx).

TEC

HCORNER


The amount of information on theWorld Wide Web continues to grow,but the ability to access the Internethas not kept pace. In a technologystudy done by OCA in 2001,3 32percent of municipal courts had noInternet access. Internet accesscontinues to decrease in price; if youhave not priced Internet access inrecent past, do so again. Many servicesare now offering dial-up for $14.99 amonth and high-speed cable modemaccess for as low as $29.99 a month.Your court could pay for Internetservices (as well as most of thetechnology mentioned in this article)from the Technology Fund.4 Checkyour local telephone book for Internetproviders.

Communicate with Other JudgesCollective learning, the idea thatmembers’ growth is based on eachother’s knowledge and insights, nowthrives in our present day technologicalsociety. Municipal courts do not operatein a vacuum. There are 861 municipalcourts across the State; rarely does anew scenario or situation arise that amunicipal court somewhere has notseen. This idea of sharing knowledge

through collective learning is easilyfacilitated through a list server, alsoknown as a listserv. Listservs5 allowusers to contact large numbers ofpeople at the same time through email.If a user posts or sends a message tothe mail server, that message is sent toall the individuals who subscribe to thatmail server as an email message.TMCEC hosts a judges’ andprosecutors’ listservs that allows judgesto post questions, comments and ideasof which other judges can then respondto, either as a personal response or as amass response. For more information,visit www.tmcec.com/jlistserv.html.

Technology changes every day. Thisarticle only addresses a small portion ofthe technology available. Be cognizantof the role technology plays in thecourt, particularly its effect onefficiency. TMCEC writes often of thefact that the majority of the public seesthe judicial system through municipalcourts; they formulate opinions aboutthe judicial system using perceptionsformed during their experiences inmunicipal court. Judges have a duty touse available technologies to improvethe efficiency and increase public

confidence in the judiciary.1 Canon 3B(9), Code of Judicial Conduct.2 Serial PalmPal 302 Pen Tablet is priced at$60.00. ID GEM Signature tablets thatalso contain fingerprint scanners arepriced between $250.00 and $680.00. Formore information, go to www.google.comand search for “signature capture devices.”3 Technology Infrastructure: Trial Court Survey2001, JCIT. Access the study atwww.courts.state.tx.us/jcit/REPORTS.HTM.4 Article 102.0172, C.C.P. The MunicipalCourt Technology Fund allows a court tocollect up to $4 as a cost of court if thegoverning body of a municipality passesan ordinance. The fund is then designatedfor the purpose of purchasing andmaintaining equipment for courttechnology. As the statute uses the term“including,” a word that the CodeConstruction Act defines as a term ofenlargement and not of limitations,Section 311.005(13). Nevertheless,Internet access is not specifically listedand TMCEC suggest talking to your cityattorney before making any decisionsregarding the Court Technology Fund.5 For an in-depth look at List Servers,http://nasje.unm.edu/archives/fall03/resources-tech.htm, Managing the Exchangeof Ideas, NASJE News.

Appreciation to VendorsTMCEC expresses its appreciation to the vendors who participated in the March 2004 TMCEC Fines and Fees Collections Conference.

Organization Name City State Phone

Accurint Boca Raton FL 888/332-8244American Collections & Credit Inc. (ACCI) Houston TX 713/774-3235American Municipal Services Carrollton TX 800/555-5160Cardinal Tracking Flower Mound TX 800/285-3833Enforcement Technology, Inc. Irvine CA 949/707-3832GC Services Houston TX 713/777-4441Infokall, Inc. Santa Ana CA 949/202-8025InCode Lubbock TX 800/646-2633Justice Systems Inc. Albuquerque NM 505/883-3987Linebarger Goggan Blair & Sampson, L.L.P. Austin TX 512/447-6675McCreary, Veselka, Bragg & Allen, P.C. Austin TX 512/451-9000 ext. 264Municipal Services Bureau Austin TX 512/371-9995Perdue, Brandon, Fielder, Collins & Mott, L.L.P. Arlington TX 817/461-3344Revenue Plus Vancouver WA 888/282-7900

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The Judicial Ethics Committee of theJudicial Section of the State Bar ofTexas issues opinions on ethical issuesfaced by Texas judges. Although theseare not binding on the JudicialConduct Commission, the reasoningof these opinions is insightful.

A municipal judge may request anethics opinion by writing Justice MackKidd, Chair of the Judicial EthicsCommittee. Justice Kidd’s address is:3rd Court of Appeals, P.O. Box 12547,Austin, Texas 78711-2547, telephone512/463-1686.

Summer Internship Program

Ethics Opinion Number 286 (2003)

Question: May a judge receive thebenefits of a law student serving as asummer judicial clerk/intern whoreceives a monetary stipend frommoney raised and distributed by alocal bar association’s foundationscholarship program funded bycontributions from local law firms,businesses, private individuals andfundraisers sponsored by the barassociation?

Answer: Yes, with certainqualifications regardingimplementation of the program.

Canon 4B provides considerablelatitude to a judge regarding activitiesto improve the law. The Committeeperceives this summer internshipprogram to be primarily aneducational endeavor which furthersthe administration of justice, andshould be permitted. However, thejudge should avoid participating in anyof the fundraising activities that mightviolate Canon 4C(2). Additionally,although the summer interns will not

ETHICS UPDATE

officially be employees of the judge towhom they are assigned, theCommittee views them as courtpersonnel who would be subject to allthe provisions of the Code. Thus, thejudge would be responsible forinstructing the interns about theirobligations and responsibilities underthe Code.

Authorized Communication withSurety


Question: Is it considered an ex partecommunication for a bail bondspersonto present an affidavit to surrenderauthorized by Sec. 17.19 of the Codeof Criminal Procedure to a judge ormagistrate in chambers or open courtwithout the presence of the Principal/Defendant and/or his or her lawyer?

Answer: No. Canon 3B(8) generallyprohibits ex parte communicationsconcerning the merits of a pending orimpending judicial proceeding, but itdoes not prohibit communicationsexpressly authorized by law. See Canon3B(8)(e) and Advisory Opinion No.183 (1995).

Art. 17.19, C.C.P., specificallyauthorizes and requires that a suretysubmit an affidavit to a judge ormagistrate in order to relieve the suretyof liability on a bond. That article alsorequires that the affidavit state that thesurety gave notice to the defendant’sattorney of his intention to surrender.

Because the affidavit procedure is well-defined and specifically authorized bylaw, the presentment of the affidavit tothe judge or magistrate would notviolate the Code of Judicial Conduct.

Legal Representation by Part-timeMunicipal Judge


Question: May an associate (part-time) municipal judge of a cityrepresent a police officer of thatmunicipality in connection with acriminal investigation of an allegedconspiracy to violate civil rights ofindividuals by planting fake drugs onthem?

Answer: No.

Canon 2A provides that “a judge . . .should act at all times in a manner thatpromotes public confidence in theintegrity and impartiality of thejudiciary.” Canon 4A provides that “ajudge shall conduct all of the judge’sextra-judicial activities so that they donot (1) cast reasonable doubt on thejudge’s capacity to act impartially as ajudge … .” The representation set outabove does not promote the integrityand independence of the judiciary, andit creates an appearance ofimpropriety.

The Committee is also of the opinionthat the representation constitutesbusiness dealings that “reflectadversely on the judge’s impartiality,interfere with the proper performanceof the judicial duties, exploit his or herjudicial position, or involve the judgein frequent transactions with lawyersor persons likely to come before thecourt on which the judge serves,”which is prohibited by Canon 4D(1).Defendants charged with criminaloffenses in municipal court should beable to reasonably anticipate that whenthey appear before the court their casewill be heard by an entirely fair and

Recent Ethics Opinions

Recent Opinions continued on page 28


TEXAS MUNICIPAL COURTSEDUCATION CENTER

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

TMCEC MISSIONSTATEMENT

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

Change Service Requested

unbiased judge. In the vast majority ofmunicipal court cases, themunicipality’s main witness is oftenone of its police officers. A defendantwho is aware of the fact that the judgehearing his case also privatelyrepresents police officers employed bythat very same municipality couldreasonably doubt that the judge was

impartial when considering thetestimony of any police officer and theweight to be given thereto.

A built-in dilemma exists in our justicesystem when a part-time judge alsomaintains a law practice. Under the TexasDisciplinary Rules of ProfessionalResponsibility, a lawyer has an obligationto zealously represent his client withinthe bounds of the law. When that lawyer

Recent Opinions continued from page 27 also serves as a judge, however, his dutyas a judge is to be impartial and topromote public confidence in theintegrity and impartiality of the judiciary.The Committee stresses to all part-timejudges to keep this conflict in mind whenchoosing to accept representation.

This answer is specific to the query anddoes not overrule Opinion No. 132(1989).B

TMCEC The Recorder

Documents

Transcript of TMCEC The Recorder