California Company Seeks Profits by Stretching Texas Law

The Texas Tribune has published an article on the collection of unpaid fines and court costs in Texas.  A new law which took effect in 2015 authorizes police officers to collect unpaid fines and court costs by swiping a person’s credit card.  The Tribune article contains some interesting comments from the vice president of a California company, Vigilant Solutions, that produces equipment which enables officers to conduct such transactions.

Via the Tribune article, Vigilant VP Todd Hodnett states that "If the person doesn't want to [pay outstanding costs by credit or debit card], then they can go to jail, which was the alternative before [license plate recognition] or roadside swiping of a credit card ever came about."

Hodnett misstates Texas law.  When a person is arrested for failure to pay fines and court costs, the person must be taken immediately before a court for a hearing, and that’s been the case for many years.  The arresting officer may take the arrested person to jail only if there’s no judge available to conduct a hearing. If a police officer makes an arrest based on a person’s failure to pay court costs at 10:00 AM on a Tuesday, the likelihood that the officer may (legally) commit the person arrested to jail approaches zero.

A hearing is required following this type of arrest because the United States Constitution prohibits the jailing of persons who simply cannot afford to pay fines and court costs.  The judge who conducts the hearing must attempt to determine whether the person has the financial resources to pay the outstanding amount or is indigent.

If the judge who conducts the hearing determines that the person arrested is indeed indigent, the judge may order the person to discharge the outstanding fine and costs via community service.  If the judge determines that performing community service would impose an undue hardship then the judge may waive the unpaid fines and costs.  That’s quite different than being jailed!

If the person arrested is indigent, and is able to perform community service but refuses to do so, the court may order the person to be confined in the county jail until he or she has earned enough “jail credit” to discharge the unpaid fines and costs.  The judge must set the rate at which the defendant earns credit.

If a police officer says “you must pay this fine immediately or go to jail,” as proposed by Vigilant Solutions, he or she violates Texas law.  As the law clearly states, a peace officer may not accept a credit or debit card payment unless he or she has first informed the arrested person of the “available alternatives to making an immediate payment.“

It’s also worth noting that Texas law prohibits a police officer from processing a credit or debit card transaction unless such payments have been approved by the court to which money is owed.  I have advised judges not to authorize such payments unless they adopt a policy which requires peace officers to provide the following information to the person arrested prior to accepting any payment.

1) If payment is not made, the defendant must be immediately taken before a court for a hearing. However, if no judge is available to conduct a hearing, the defendant may be temporarily confined in jail.

2) A hearing before a court could result in the court placing the defendant on a payment plan.

3) A hearing before a court could result in the court allowing the defendant to discharge the fine and costs by performing community service.

4) A hearing before a court will result in the defendant’s commitment to jail only if the court determines that the defendant is: 1) not indigent and the court determines that the defendant has failed to make a good faith effort to discharge the fine and costs; or 2) indigent and the court determines that the defendant has failed to make a good faith effort to discharge the fines and costs by performing community service and could have done so without experiencing any undue hardship.

5) If the defendant is committed to jail, the court will determine the rate at which the defendant will earn credit towards the fine and costs.

Asking police officers to fully and clearly explain the alternatives to making an immediate payment, as required by Texas law, would probably reduce the number of roadside credit and debit card payments.  That would be bad news for Vigilant Technologies, which collects twenty-five percent of the total amount of each credit or debit card transaction.  It is disappointing, but not surprising, that a profit-seeking California corporation would seek to undermine the constitutional rights of Texans in order to line its own pockets.

If you are offered the “opportunity” to make a credit or debit card transaction as an alternative to being committed to jail, please consider contacting an attorney.