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.

The Inquest into Justice Scalia’s Death, Explained

Whenever a person dies in Texas without having been attended by a physician, state law requires an inquest, or an investigation into the cause of the person’s death. In the wake of Justice Antonin Scalia’s death in Presidio County, reporting by some news outlets has exhibited a misunderstanding of the inquest process.  In this post, I’ll explain the basics of Texas inquests.  (NB: I provided education on this subject to justices of the peace for five years as an instructor for the Texas Justice Court Training Center, and I’m the author of TJCTC’s DWI Magistration & Inquest Field Guide.)

When is an inquest required by law?

As stated above, Texas law requires an appropriate judge (or, in populous counties, a medical examiner) to perform an inquest whenever person dies without having been attended by a physician.  Therefore, Justice Scalia’s death required an inquest.  (Other deaths also require inquests.  For example, prisoner deaths which occur in county jails must be investigated.  A full list of the types of deaths requiring an inquest may be found here.)

What’s the difference between an inquest and “declaring someone dead?”

The former is an established legal process, and the latter is a journalistic fiction.  Several news outlets have reported that the Presidio County Judge Cinderela Guevara “declared Scalia dead.”  That phrase sounds great when incorporated into a headline or a news article’s lead paragraph, but it describes an event which never occurred.  Judges aren’t called to perform an inquest unless a person has discovered a body that is clearly dead and reported that discovery.  The judge does not show up to the scene, point at the body, and say, “Yep, he’s dead.”  Texas law requires judges to investigate the cause of death, not to determine whether or not a person is deceased.  Such inquires could take weeks or months.  Accordingly, if you read through Chapter 49 of the Code of Criminal Procedure (titled “Inquests Upon Dead Bodies”), you won’t find the phrase “declaration of death.” 

Is it legal to perform an inquest over the telephone?

Texas law states that “a [judge] may conduct an inquest: (1) at the place where the death occurred; (2) where the body was found; or (3) at any other place determined to be reasonable by the justice.”  This passage does not explicitly permit inquest-by-telephone, but judges in rural counties with limited budgets frequently conduct inquests based on information received telephonically.  In my experience, many judges dislike this practice but find themselves constrained by tight-fisted county commissioners who may refuse to reimburse the judge for the cost of traveling to the location of the dead body.  Many counties also set an annual “inquest budget” and commissioners in such counties have been known to punish judges who exceed the annual inquest budget by cutting funding for those judges’ courts.

What’s strange to me about Judge Guevara conducting the inquest over the telephone is that the county judge may only perform an inquest if “no justice of the peace serving the county in which the body or body part was found is available to conduct an inquest.”  According to NPR, the two Presidio County justices of the peace declined to perform the inquest because they were out of the county.  (Precinct 1 Justice of the Peace David Beebe confirmed this on Twitter.)  This indicates to me that the justices of the peace may have expected that an inquest would be performed in person, as they could have performed a telephone inquest from Alpine or Fort Stockton.  I can’t say why Judge Guevara decided to carry out her duties over the phone, but I can tell you that I generally discouraged this practice as an instructor for the Texas Justice Court Training Center.

When does a judge who performs an inquest have to order an autopsy?

As you’ve probably heard, Judge Guevara did not order an autopsy as part of the inquest into Justice Scalia’s death.  The Code of Criminal Procedure states that “a justice of the peace may obtain the opinion of a county health officer or a physician concerning the necessity of obtaining an autopsy in order to determine or confirm the nature and cause of a death.”  Whenever the word “may” is used in a Texas statute, it “creates discretionary authority or grants permission or a power.”  Therefore, judges who conduct inquests generally don’t have to request that an autopsy be peformed.

Importantly, Article 49.10 of the Code of Criminal Procedure also states that “the commissioners court of the county shall pay a reasonable fee for a consultation obtained by a justice of the peace.”  These statutes give Presidio County judges who perform inquests the following choices: 1) make a cost-free decision about the cause of death; or 2) pay the El Paso County Medical Examiner’s office a sizable fee to perform an autopsy.  Again, keeping in mind that rural counties have limited budgets and that county commissioners may wish to use those limited budgets for road-building or improved county health services, many judges decline to order an autopsy when the defendant is elderly and the causes of death seem fairly obvious and non-malevolent.

What happens now? Is the inquest into Justice Scalia’s death over?

Judge Guevara must transfer “all information obtained” as part of the inquest to Precinct 2 Justice of the Peace Juanita Bishop by Thursday, February 18 so that Judge Bishop may finally dispose of the matter.  If Judge Bishop determines that additional information is needed to complete the death certificate required by state law, she may take additional steps such as ordering an autopsy or holding a formal inquest hearing.  This could be good news (or bad news, depending on how you view it) for conspiracy theorists peddling absurd stories.

Why Isn’t the Texas Department of Public Safety Collecting Information Regarding Bond Conditions?

Generally, a person who has been arrested without a warrant in Texas must be taken before a magistrate, who must determine whether probable cause exists to believe the person committed a criminal offense. If the magistrate determines that probable cause exists then the magistrate is required to read the person his or her rights, set bail, and impose bond conditions.

So, what's a bond condition?  When a person is released from state custody following an arrest, a magistrate may place conditions on that person’s release in order to protect a victim of the offense or the safety of the community at large.  Bond conditions might require a person who has committed a DWI offense to install an ignition interlock device, or they might require a person who has committed kidnapping to refrain from contacting the victim. Many advocates have suggested that bond conditions play a particularly important role when the person arrested is alleged to have committed an offense involving family violence, for the cycle of violence increases the likelihood that further offenses will occur.

In 2013, the Texas Legislature amended Section 411.042 of the Government Code to read as follows:

“The bureau of identification and records shall…collect information concerning the number and nature of protective orders and all other pertinent information about all persons on active protective orders, including pertinent information about persons subject to conditions of bond imposed for the protection of the victim in any family violence, sexual assault or abuse, or stalking case.”

The use of the word “shall” in this statute imposes a duty on the Texas Department of Public Safety (DPS), which maintains the bureau of identification and records.

The Legislature has granted DPS the authority to make rules relating to the collection of the information that it is required by law to collect.  Subsection (g) of the same statute, also amended in 2013, states:

“the department may adopt reasonable rules under this section relating to…

(7) active conditions of bond imposed on a defendant for the protection of a victim in any family violence, sexual assault or abuse, or stalking case, and reporting procedures that ensure that information relating to the issuance, modification, or removal of the conditions of bond is reported, at the time of the issuance, modification, or removal, to:

(A)  the victim or, if the victim is deceased, a close relative of the victim; and

(B)  the local law enforcement agency for entry by the local law enforcement agency in the state's law enforcement information system.

Two and a half years after these changes to Section 411.042 took effect, the Department of Public Safety has yet to promulgate administrative rules pertaining to the collection of bond condition information in family violence, sexual assault/abuse, or stalking cases.  Furthermore, DPS has yet to update its reporting systems so that the agency can fulfill its statutory duty to track bond conditions and report changes in bond conditions to victims and law enforcement.

Is this important?  Why did the legislature impose this duty on DPS?  I believe that the answer may be found in Section 25.07 of the Penal Code, which makes violation of a protective order, emergency protective order, or a condition of bond in a family violence, sexual assault/abuse, or stalking case a crime.  A peace officer cannot make an arrest for a crime under Section 25.07 if he or she is unaware that a violation of a court order has taken place. A peace officer would typically become aware of such orders through reporting systems maintained by DPS.  A related statute seems to confirm that the reporting of information relating to protective orders, emergency protective orders, and bond conditions serves “to ensure that an officer responding to a call is aware of the existence and terms” of such orders.  This awareness protects the peace officer and the victim, and also allows the officer to make an arrest pursuant to Sec. 25.07 of the Penal Code, if appropriate.

Clearly, the Texas Legislature has authorized courts to issue protective orders and impose conditions of bond in order to protect crime victims and to suppress additional crime. The Legislature also sought to give protective orders and bond conditions additional muscle by enacting Section 25.07 of the Penal Code.  The changes made in 2013 sought to increase enforcement pursuant to Section 25.07, but that goal seems to have been undermined by a state agency that has ignored its statutory duties and has taken no action in this area.

The good news here is that the Texas Legislature appears to be playing an active role in protecting crime victims and suppressing violent criminal behavior.  The bad news is that some folks at the Department of Public Safety don’t seem to care about these things.

The Obligatory First Post

syn - tax   noun

The arrangement of words and phrases to create well-formed sentences in a language.

Words matter when it comes to the law. Failure to use an appropriate word or phrase may result in the reversal of a court decision or the invalidation of a law. Words particularly matter when it comes to criminal law because written statutes created by legislatures serve as the foundation of our criminal justice system. The Texas legislature tinkers with the words that make up some of these statutes every two years, and that tinkering affects Texans, Texas courts, and Texas lawyers.  

I created this blog for the purpose of publicly examining Texas criminal statutes and their impact on the state. This examination will generally occur in the following ways. First, I'll examine the rules and requirements created by existing criminal law statutes and determine whether Texas jails, trial courts, and appellate courts are complying with those requirements. Second, I'll review and discuss appellate court opinions that interpret statutory language. Third, I'll analyze proposed criminal justice legislation and explore its potential impact.

I hope that this blog will be of interest to the Texas legal community and the general public. I will always welcome comments, questions, and corrections on posts. Thanks for reading.  -RD