INTRODUCTION AND ACKNOWLEDGMENTS

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INTRODUCTION AND ACKNOWLEDGMENTS

The Texas Court Clerks Association and the Texas Court Clerks Education Committee are proud to present this publication to the municipal courts of Texas. It is a procedures and reference guide for court administrators, court clerks, and deputy court clerks. Its format is designed to give clerks step-by-step procedures for municipal court processes.

The intention of the authors is to be as practical as the law allows. Statutes and cases are referenced in the “Notes” section of the publication. Also, additional information to help clerks understand the procedures is presented in the “Notes” section.

This guide was written and prepared by municipal court clerks for municipal court clerks. Every effort has been made to ensure the accuracy and completeness of this work. The publication includes the 80th

Legislative changes. The procedures presented in this publication are intended to be an aid to help municipal clerks and are not a substitute for legal advice. Should any material in this publication conflict with constitutional, statutory, or case law, the law provided by the constitution, statute, or case prevails. The procedures and processes presented in this publication are solely those of the authors and not of the Association. Judges and clerks should contact their city attorneys with any specific questions about the operations of their courts.

It is with grateful appreciation, the Texas Court Clerks Association would like to thank the following contributors:

•

Shona Bohon,

•

Rosie Caballero,

•

Hilda Cuthbertson,

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Carol Gauntt,

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Tracie Glaeser,

•

Leisa Hardin,

•

Pennie Jack

•

Julie Kubeczka,

•

Hope Lochridge,

•

Lisa Mayo,

•

Tina Plumlee, and

•

Margaret Robbins.

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

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PREFACE

Managing municipal court records is the responsibility of court administrators and court clerks. Hence, it is important that administrators and clerks understand how to properly handle records requests and records retentions and destruction of records. The following information is not contained within the text of this book. Therefore, a synopsis of these topics is presented here. After reading this information, clerks should talk with their judges, city attorney, and city records manager.

Public Information

The judiciary is not governed by the Public Information Act, which is codified in Chapter 552 of the Local Government Code. Public access to municipal court records is governed by common law and constitutional law. The common law right to public access of criminal records such as municipal court cases was articulated by the United State Supreme Court case Nixon v. Warner Communications, Inc. 435 U.S. 589, 597, 98 S.Ct. 1306,1306, 1312 (1978), as follows:

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

In the case of the Star-Telegram, Inc. v. Walker, 834 S.W.2d (1992), the court held that once papers are filed with the court, they become court records and are public. This case dealt with the identity of a rape victim whose identity was disclosed in an indictment, a motion in limine and a charge to the jury. The court held that the records were public because they were part of court records that were public.

The constitutional law relating to public access to criminal court records is found in Express-News Corp v. MacRae, 787 S.W.2d 451, 452 (Tex. App.—San Antonio 1990).

“The public’s right to public trials under the First and Fourteenth

Amendments to the United States constitution includes a presumption that judicial records will be open to inspection by the press and public. Nixon v. Warner Communication, Inc. 435 U.S. 589, 597, 98 S.C. 1306, 1312 (1978). This

presumption of openness may be overcome by a countervailing interest, such as the defendant’s right to a fair trial, but the reason for closure or sealing must be apparent and clearly articulated. Richmond Newspapers v. Virginia, 448 U.S. 555, 581, 100 S.Ct. 2814, 2829-30 (1980); Houston Chronicle Publishing Co. v. Hardy, 578, S.W.2d 495, 499 (Tex. App.-Corpus Christi, 1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1754 (1985).”

What does this mean for municipal court clerks and administrators? It means that municipal court records are open unless there is a statute that makes the record confidential. It is the judge of the court that makes policy about how municipal court records are released. Court administrators and clerks should work with their judges to provide the most expeditious manner of releasing records.

Rule 12 of the Rules of Judicial Administration govern certain judicial records under the authority of the judge. The purpose of Rule 12 is expressed in its policy statement as follows:

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“12.1 Policy. The purpose of this rule is to provide public access to information in

the judiciary consistent with the mandates of the Texas Constitution that the public interests are best served by open courts and by an independent judiciary. The rule should be liberally construed to achieve its purpose.”

When clerks receive requests for information under Rule 12, they must give the request immediately to the judge to respond. Only the judge may respond to this request and the judge has certain time deadlines requirements in the Rule. Administrators and clerks should have policies and procedures for handling these types of requests for information established by their judges.

Records Management

Section 203.021, Local Government Code, requires cities to establish, promote, and support an active and continuing program for the efficient and economical management of all local government records. The Local Government Code provides rules and regulations for this end. The State Library and Archives Commission has established required minimum retention periods for all city records, including court records. Cities can adopt more stringent retention periods. If a city has not adopted the required ordinance regarding records retention and destruction of records, the city must get permission from the State Library before destroying records.

Chapter 202, Local Government Code governs the destruction of records. It provides for the methods of destruction and personal liability if records are improperly destroyed. Clerks should first check with city records managers for copies of the city ordinance on records retention and destruction of records and if the city does not have an ordinance, the clerk should contact the State Library and Archives Commission at (512) 421-7200. Clerks can visit the State Library website is www.tsl.state.tx.us/ for information on records retention; microfilming standards and procedures, retention schedules for records common to all local governments, information on destruction of records, a copy of the Local Government Records Act, and much more information on records management.

Clerks Certification Program

Another source of information to help clerks administer and manage their courts is the Municipal Court Clerks Certification Program. This program has been in operation for 11 years and has improved the administration of the courts immeasurably. The Texas Municipal Courts Education Center has the Level I and II Study Guides on its website: www.tmcec.com. Both of these publications contain information about Rule 12 and records management.

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CHAPTER 7 DEFERRED DISPOSITION ...39

A. TERMS AND CONDITIONS...39

B. PROCEDURES...40

CHAPTER 8 TEEN COURT ...47

CHAPTER 9 TRIALS...49

A. MOTIONS FOR CONTINUANCE...49

B. SUBPOENAS...50 C. JURY TRIALS...52 D. DAY OF JURY TRIAL...57 E. BENCH TRIAL...59 F. NEW TRIAL...61 CHAPTER 10 SENTENCING ...63 CHAPTER 11 INDIGENCE ...65

CHAPTER 12 METHOD OF PAYMENTS ...67

A. TIME PAYMENTS...67

B. COMMUNITY SERVICE...71

CHAPTER 13 RETURNED CHECKS ...75

CHAPTER 14 APPEAL ...77

A. APPEALS FROM A MUNICIPAL COURT OF NON-RECORD...77

B. APPEALS FROM A MUNICIPAL COURT OF RECORD...80

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

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B. VIOLATION OF PROMISE TO APPEAR...87

CHAPTER 16 WARRANT OF ARREST...91

CHAPTER 17 CAPIAS ...95

CHAPTER 18 SUMMONS...99

CHAPTER 19 CAPIAS PRO FINE...101

CHAPTER 20 DEFENDANT ARRESTED ...105

CHAPTER 21 JUVENILES AND MINORS ...109

A. JURISDICTION...109

B. WAIVER OF MUNICIPAL COURT JURISDICTION AND TRANSFER OF CHILD TO JUVENILE COURT...111

C. APPEARANCE AND GENERAL PROCEDURES...111

D. TRAFFIC AND OTHER MOTOR VEHICLE MISDEMEANORS...116

1. Offenses...116

2. Penalties...117

E. ALCOHOLIC BEVERAGE CODE...119

1. Status Offenses ...119

2. General Penalty Provision, Section 106.071, A.B.C. ...120

3. Specific Penalty Provision, Section 106.041, A.B.C. – Minor D.U.I...123

4. Alcohol Awareness Program and Community Service ...126

(a) Defendant Completes Alcohol Awareness Program and Community Service ...126

(b) Defendant Fails to Complete Alcohol Awareness Program or Community Service ...127

(c) Defendant Fails to Complete Alcohol Awareness Program or Community Service ...128

F. HEALTH &SAFETY CODE...129

1. Tobacco Offenses Committed by Minors...129

2. Penalties for Tobacco Use by Minors. Section 161.253, H.S.C. ...130

G. PENAL CODE OFFENSES...132

1. Offenses...132

2. Penalties...133

H. EDUCATION CODE OFFENSES...133

1. Offenses...133

2. Penalties...134

I. ADDITIONAL OPTIONAL SANCTIONS...137

J. DEFAULT IN PAYMENT OF FINE OR VIOLATION OF COURT ORDER...139

K. FAILURE TO APPEAR...141

L. CHILDREN TAKEN INTO CUSTODY...142

M. CHILDREN TAKEN INTO CUSTODY FOR VIOLATION OF JUVENILE CURFEW...144

N. UNADJUDICATED CHILDREN,NOW ADULTS (NO APPEARANCE MADE)...145

O. CHILDREN NOW ADULTS WHO FAIL TO PAY –CAPIAS PRO FINE...147

P. EXPUNCTION...148

1. Expunction under Article 45.0216, C.C.P. ...148

(a) Offenses and Eligibility Requirements ...148

(b) Procedures ...149

2. Expungement for minors convicted of offenses under the Alcoholic Beverage Code ...152

(a) Eligibility ...152

3. Expungement for Minors Conviction of Tobacco Offenses...153

(a) Eligibility Requirements ...153

4. Expunction Procedures for Failure to Attend School Convictions...155

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CHAPTER 22 BOND FORFEITURE...159

A. SURRENDER OF PRINCIPAL...159

B. DAY OF APPEARANCE ON CRIMINAL CHARGE...159

C. ISSUANCE OF CAPIAS...160

D. DECLARING THE FORFEITURE...161

E. SCIRE FACIAS DOCKET...161

F. ISSUANCE OF CITATION...162

G. WAIVER OF SERVICE OF CITATION...162

H. SERVICE OF CITATION...163

I. FILING DEFENDANT’S ANSWER...167

J. SETTING CASE ON SCIRE FACIAS DOCKET...168

K. BOND FORFEITURE TRIAL...169

L. JUDGMENTS...173

M. NEW TRIAL...177

N. BILL OF REVIEW...177

O. BOND FORFEITURES UNDER ARTICLE 45.044,C.C.P. ...178

CHAPTER 23 DPS REPORTING...181

A. ALCOHOLIC BEVERAGE CODE...181

B. PENAL CODE...186

C. HEALTH AND SAFETY CODE...189

D. TRANSPORTATION CODE...190

E. EDUCATION CODE...195

F. NEW TRIAL...197

G. APPEALS...197

H. CHART OF FORMS...198

I. INFORMATION REPORTED ON FORMS...200

J. ADDRESSES TO SEND REPORTS...203

K. CITY CONTRACTS...203

CHAPTER 24 ADMINISTRATIVE HEARINGS ...207

A. PROPERTY HEARINGS:DISPOSITION OF STOLEN PROPERTY...207

B. JUNK VEHICLE ABATEMENT...208

C. ANIMAL CRUELTY HEARINGS...209

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TABLE OF CHECKLISTS

Chapter Chapter Title Checklist Title Checklist Number Page

Chapter 1 Citations and Complaints Citations and Complaints Checklist 1 Page 1 Chapter 2 Docketing Docketing Checklist 2 Page 5 Chapter 3 Overview of Procedures Overview of Procedures Checklist 3 Page 7 Chapter 4 Dismissals Dismissals Checklist 4 Page 11 Chapter 5 Appearances and Pleas Appearances and Pleas Checklist 5 Page 25 Chapter 6 Driving Safety Courses

(Mandatory)

Eligibility Checklist 6-1a Page 27 Procedures Checklist 6-1b Page 28 Driving Safety Courses

(Discretionary)

Driving Safety Courses (Discretionary)

Checklist 6-2 Page 35

Chapter 7 Deferred Disposition Terms and Conditions Checklist 7-1 Page 39 Procedures Checklist 7-2 Page 40 Chapter 8 Teen Court Teen Court Checklist 8 Page 47 Chapter 9 Trials Motions for Continuance Checklist 9-1 Page 49

Subpoenas Checklist 9-2 Page 50 Jury Trials Checklist 9-3 Page 52 Day of Jury Trial Checklist 9-4 Page 57 Bench Trial Checklist 9-5 Page 59 New Trial Checklist 9-6 Page 61 Chapter 10 Sentencing Sentencing Checklist 10 Page 63 Chapter 11 Indigence Indigence Checklist 11 Page 65 Chapter 12 Methods of Payment Time Payments Checklist 12-1 Page 67 Community Service Checklist 12-2 Page 71 Chapter 13 Return Checks Return Checks Checklist 13 Page 75 Chapter 14 Appeals Appeals from Municipal a

Municipal Court of Non-Record

Appeals from a Municipal Court of Record

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Chapter Chapter Title Checklist Title Checklist Number Page Number

Chapter 15 Failure to Appear and Violation of Promise to Appear

Failure to Appear Checklist 15-1 Page 85 Violation of Promise to

Appear

Chapter 16 Warrant of Arrest Warrant of Arrest Checklist 16 Page 91 Chapter 17 Capias Capias Checklist 17 Page 95 Chapter 18 Summons Summons Checklist 18 Page 99 Chapter 19 Capias Pro Fine Capias Pro Fine Checklist 19 Page 101 Chapter 20 Defendant Arrested Defendant Arrested Checklist 20 Page 105 Chapter 21 Juveniles and Minors Jurisdiction Checklist 21-1 Page 109

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

Appearance and General Procedures

Checklist 21-3 Page 112 Traffic and Other Motor

Vehicle Misdemeanors Offenses Checklist 21-4a Page 116 Penalties Checklist 21-4b Page 117 Alcoholic Beverage Code Status Offenses Checklist 21-5a Page 119

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

Checklist 21-5b Page 120 Specific Penalty Provisions,

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

Checklist 21-5c Page 123

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

Checklist 21-5d(1) Page 126

Defendant fails to Complete Alcohol Awareness Program or Community Service

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

Page 127 Page 128 Health and Safety Code Tobacco Offenses Committed

by Minors

Checklist 21-6a Page 129 Penalties for Tobacco Use by

Minors Checklist 21-6b Page131 Penal Code Offenses Checklist 21-7a Page 132

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Chapter Chapter Title Checklist Title Checklist Number Page Number

Chapter 21 Juveniles and Minors

Education Code Offenses Checklist 21-8a Page 133 Penalties Checklist 21-8b Page 134 General Procedures Additional Sanctions (that

may be assessed upon conviction of a juvenile)

Default Payment of Fine or Violation of court Order

Checklist 21-10 Page 139 Failure to Appear Checklist 21-11 Page 141 Children Taken into Custody Checklist 21-12 Page 142 Children Taken into Custody

for Custody for Violation of Juvenile Curfew

Unadjudicated Children Now Adults (No appearance Made)

Children Now Adults Who Fail to Pay – Capias Pro Fine

Checklist 21-15 Page 147 Expunctions under Article

45.0216, C.C.P.

Offenses and Eligibility Requirements

Checklist 21-16a(1) Page 148 Procedures Checklist 21-16a(2) Page 149 Expunctions for minors

convicted of offenses under the Alcoholic Beverage Code

Eligibility Checklist 21-16b(1) Page 152

Procedure Checklist 21-16b(2) Page 152 Expungement for Minors

conviction of Tobacco Offenses

Eligibility Checklist 21-16c(1) Page 154 Procedures Checklist 21-16c(2) Page 154 Expunction Procedures for

Failure to Attend School Convictions

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

Procedures Checklist 21-16d(2) Page 156 Chapter 22 Bond Forfeiture Surrender of Principal Checklist 22-1 Page 159

Day of Appearance on

Criminal Charge Checklist 22-2 Page 160 Issuance of Capias Checklist 22-3 Page 160 Declaring the Forfeiture Checklist 22-4 Page 161 Scire Facias Docket Checklist 22-5 Page 161 Issuance of Capias Checklist 22-6 Page 161

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Chapter Chapter Title Checklist Title Checklist Number Page Number

Chapter 22 Bond Forfeitures

Waiver of Service of Citation Checklist 22-7 Page 162 Service of Citation Checklist 22-8 Page 163 Filing Defendant’s Answer Checklist 22-9 Page 167 Setting Case on Scire Facias

Docket Checklist 22-10 Page 168 Bond Forfeiture Trial Checklist 22-11 Page 169 Judgments Checklist 22-12 Page 173 New Trial Checklist 22-13 Page 177 Bill of Review Checklist 22-14 Page 177 Bond Forfeitures under

Article 45.044, C.C.P. (cash bond forfeitures)

Chapter 23 DPS Reporting Alcoholic Beverage Code Checklist 23-1 Page 181 Penal Code Checklist 23-2 Page 186 Health and Safety Code Checklist 23-3 Page 189 Transportation Code Checklist 23-4 Page 191 Education Code Checklist 23-5 Page 195 New Trial Checklist 23-6 Page 197 Appeals Checklist 23-7 Page 197 Chart of Forms Checklist 23-8 Page 198 Information Reported on

Forms

Checklist 23-9 Page 200 Addresses to Send Reports Checklist 23-10 Page 203 City Contracts Checklist 23-11 Page 203 Chapter 24 Administrative Hearings Property Hearings:

Disposition of Stolen Property

Junk Vehicle Abatement Checklist 24-2 Page 208 Animal Cruelty Hearings Checklist 24-3 Page 209 Dangerous Dog Hearings Checklist 24-4 Page 211

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ABBREVIATIONS

USED IN THIS CHECKLIST BOOK

A.B.C. Alcohol Beverage Code Art. Article

C.C.P. Code of Criminal Procedure DPS Department of Public Safety E.C. Education Code F.C. Family Code G.C. Government Code H.S.C. Health and Safety Code JNA Juvenile Now Adult L.G.C. Local Government Code P.C. Penal Code P.W.C. Parks and Wildlife Code Sec. Section

T.C. Transportation Code

TMCEC Texas Municipal Courts Education Center V.A.C.S. Vernon’s Annotated Civil Statutes

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CHAPTER 1

CITATIONS AND COMPLAINTS

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

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

Checklist 1 Notes

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

2. Police officer brings citation to court for filing. 3. Clerk or judge may accept citation for filing.

a. Clerk reviews citation.

b. Clerk enters citation in docket (In most courts the docket is the case management software.).

Charges in municipal court may be initiated by citation or complaint. Only peace officers have statutory authority to issue citations. Article 14.06(b), C.C.P. and Section 543.003, T.C. If a clerk is unable to read the citation, the clerk sends the citation back to police department. (Note: If there are any changes made on a citation, a sworn complaint must be filed. Article

27.14(d), C.C.P.)

When court accepts citation, case is filed.

CHECKLIST 2.

TMCECFORMS:DOCKET SHEET. Article 45.017(b), C.C.P., provides authority for courts to maintain and store dockets electronically.

Note: Because some police departments use ticket writers, citations are filed electronically. In this instance, the clerks review the citations after they are downloaded to determine if any errors have occurred or if there are any issues with the citations before they are

accepted for filing. The citations that are accepted are then filed into the case management software and not data entered. The citations that are not accepted are sent back to the police department for review.

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

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

Case file can be a file folder, envelope, document imaging system, or whatever helps the court expeditiously handle the files.

If defendant and prosecutor agree in writing to go to trial on the citation and file the agreement with the court, the court will not prepare a complaint. Article 27.14(d), C.C.P.

A complaint is a sworn statement (affidavit).

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

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

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

If a court does not already have wording for the complaint, the court must contact the prosecutor. The prosecutor is

responsible for the wording on the complaint or the court can refer to TMCECFORMS:COMPLAINTS for sample complaints.

6. Administering the oath to affiant (person swearing to complaint).

a. Person swearing to complaint (affiant) must be familiar with information contained in complaint.

b. Person administering oath asks affiant to raise hand and swear that the information contained in the complaint is true.

c. After affiant swears that information is true and correct, affiant signs complaint in front of person administering oath.

Clerk, deputy clerk, city secretary, judge, city attorney, and deputy city attorney have authority to administer the oath to someone swearing to a

complaint. Article 45.019(e), C.C.P. See Section 602.002, G.C., for more persons who have authority to administer oath.

d. Person administering oath signs jurat.

e. Court seal is impressed on complaint.

Jurat is the certificate of the person administering the oath.

Article 45.012(g), C.C.P.; Section 30.000125, G.C.

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

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

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

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CHAPTER 2

DOCKETING

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

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

Checklist 2 Notes

1. Clerk enters citation or sworn complaint in docket.

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

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

After a case is filed, the next step is to enter case into the docket (docket book or case management software on a computer). Article 45.1017, C.C.P. TMCECFORMS:DOCKET SHEET. Note: Because some police departments use ticket writers, citations are filed electronically. In this instance, the clerks review the citations after they are downloaded to determine if any errors have occurred or if there are any issues with the citations before they are

accepted for filing. The citations that are accepted are then filed into the case management software and not data entered. The citations that are not accepted are sent back to the police department for review or prosecutor for a decision on whether to accept for prosecution.

Case entered into docket. Usually, software assigns docket numbers. The docket number is used on all orders issued with the case.

The style of all cases in municipal court is “The State of Texas vs. defendant’s name.”

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

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5. After the judge accepts a plea from the defendant, the clerk enters the date the defendant entered the plea on the docket.

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

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

If the defendant had a jury trial, the clerk enters the verdict (guilty or not guilty) on the docket. For jury trials, see CHECKLISTS 9-3and9-4.

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

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

8. The clerk enters the motion for new trial, if any, and the judge’s decision on the motion.

After defendants are convicted at trial, they may make a motion for new trial. See CHECKLIST 9-6 for new trials. 9. The clerk must enter whether the defendant appealed

his/her case and the date of the appeal.

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

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CHAPTER 3

OVERVIEW OF PROCEDURES

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

Checklist 3 Notes

1. Case filed.

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

b. Charge (offense) must occur within the jurisdiction of the court:

(1) The location of where the offense occurred;

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

CHECKLIST 1.

Charges in municipal court may be initiated by citation or complaint. Only peace officers have statutory authority to issue citations. Article 14.06(b), C.C.P. and Section 543.003, T.C.

See Article 4.14, C.C.P.; Sections 26.045 and 29.003, G.C.; Section 4.11, C.C.P. and Section 503.092(b), T.C. Municipal courts of record should also look at Section 30.00005, G.C. See also A.G. Op. No. JC-0025. The prosecutor should be aware of complaints filed.

If there are any issues with the citation or complaint, the clerk must notify the prosecutor to decide whether to accept the charge.

Municipal court’s geographical

jurisdiction is the territorial limits of the city, property owned by the city in the extraterritorial limits and extraterritorial limits in cases arising from ordinances regulating outdoor signs (These outdoor sign ordinance regulation may also be filed in justice court.). Sec. 26.045, G.C. and Art. 4.11, C.C.P. Municipal courts of records have some jurisdiction in its extraterritorial limits. Article 4.14, C.C.P. and Section 29.003, G.C.

“Fine-only” is defined as an offense that is punishable by fine and such sanctions, if any, as authorized by statute not consisting of confinement in jail or imprisonment. Article 4.14(c), C.C.P.

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(3) Whether the case if filed within statute of limitations (Article 12.02, C.C.P.).

(4) A defendant cannot be younger than age 10.

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

Article 45.058(h), C.C.P.; Section 51.02(2), F.C.

(5) If a defendant is younger than age 17, municipal court has no jurisdiction if the defendant is charged with the Penal Code offense of public intoxication.

c. Clerk enters case on docket.

Section 51.03(f), F.C.

CHECKLIST 2. d. If a complaint is filed to initiate proceedings,

court may send courtesy notice to defendant about court date or prosecutor may request the judge issue a summons.

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

2. Appearance.

a. Defendant appears. b. Defendant offers plea.

CHECKLIST 5.

For appearance procedures for juveniles see CHECKLIST 21-3.

3. Failure to Appear.

a. Defendant fails to appear. b. Court issues warrant.

CHECKLISTS 15-1and15-2. CHECKLIST 16.

For procedures for handling juveniles’ failure to appear see CHECKLIST 21-11. 4. Trial.

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

CHECKLIST 9.

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a. Judge signs and enters the judgment. b. Clerk enters judgment on docket. 6. Payment.

CHECKLIST 2. CHECKLIST 12. 7. New Trial.

a. The defendant files motion for new trial after being found guilty.

b. Clerk gives motions to judge immediately.

CHECKLIST 9-6.

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

8. Appeal.

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

CHECKLIST 14.

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CHAPTER 4

DISMISSALS

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

Checklist 4 Notes

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

a. Defendant shows proof of obtaining the required license plates and proof of current registration.

b. Clerk makes a copy of proof of compliance. Note: Some judges require the defendant to

appear in open court with evidence of compliance.

c. Clerk accepts payment and receipts payment of fee (effective 1/1/2008).

d. Defendant proves registration insignia is attached to the car before the defendant’s first court appearance.

e. Clerk prepares judgment and attaches copies of all required proofs with receipt of payment of fee (fee effective 1/1/2008).

f. Judge reviews evidence and if sufficient, signs judgment dismissing the case.

g. Clerk enters the dismissal judgment on the docket.

h. Clerk archives case file.

The judge may dismiss the charge if defendant obtains the required license plates before the first court

appearance and pays a $10 fee (fee effective 1/1/2008). Defendant must have current registration at time of offense. Section 502.404, T.C. Receipt of purchase of plates or other proof of purchase or obtaining license plates.

Defendant required to pay fee (fee effective 1/1/2008) in order for the judge to dismiss charge.

Registration insignia required to be attached before judge may dismiss charge.

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

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2. Expired Motor Vehicle Registration.

a. Clerk verifies the defendant paid the tax assessor/collector the required late fee prescribed by Section 502.176, T.C.

b. Clerk makes copy of proof of compliance and payment of late fee.

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

c. Clerk collects administrate fee not to exceed $20 ($20 fee effective 1/1/2008; the $10 fee is effective until 1/1/2008), if judge orders.

The judge may dismiss if the

defendant purchases valid registration and pays the required late fee to the tax assessor-collector not later than the 20th_{working day after the date of}

the offense or before the defendant’s first court appearance date, whichever is later. Judge may assess $20 ($20 fee effective 1/1/2008; the $10 fee is effective until 1/1/2008)

administrative fee. Section 502.407, T.C.

“Day” does not include Saturday, Sunday, or a legal holiday. Article 45.003, C.C.P.

Maintain a record of payment receipt.

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

(1) Proof of compliance.

(2) Proof of payment of late fee to tax assessor/collector.

(3) Receipt of administrative fee.

e. Judge reviews evidence and if sufficient, signs judgment dismissing the case and orders payment of administrative fee.

f. Clerk enters the dismissal judgment on the docket.

g. Clerk archives case file.

TMCECFORM:JUDGMENT— DISMISSAL BY THE COURT.

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

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

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

1/1/2008).

c. The clerk makes a copy of the proof and writes a receipt for payment of the fee.

d. The clerk prepares the dismissal judgment for the judge’s signature.

e. The clerk gives the judgment and proof of compliance to the judge.

f. The judge reviews the evidence and signs dismissal judgment and orders payment of the administrative fee.

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

The case cannot be noted as dismissed in the court management software or docket book until the judge signs the dismissal judgment. 4. Fail to Display Driver’s License.

a. Defendant present evidence of valid driver’s license that was valid on the date of the offense.

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

c. Clerk gives proof to the prosecutor.

d. Prosecutor makes a motion to the judge to dismiss the charge.

Section 521.025, T.C.

The prosecutor must make a motion to dismiss the charge if the defendant had a valid driver’s license at the time of the offense. The judge must

dismiss the charge. The court may assess an administrative fee of $10 (fee effective 1/1/2008).

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

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

docket.

h. The case is archived.

The case cannot be noted as dismissed in the court management software or docket book until the judge signs the dismissal judgment. 5. Expired Driver’s License.

a. Clerk makes a copy of proof of compliance (i.e., driver license).

b. Clerk collects $20 fee ($20 fee effective 1/1/2008; the $10 fee is effective until 1/1/2008) and prepares receipt.

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

(2) Receipt of administrative fee. d. Judge grants prosecutor motion, signs

dismissal judgment, and orders payment of administrative fee.

e. Clerk enters the dismissal judgment on the docket.

f. Clerk archives case.

The judge may dismiss the charge if defendant renews his/her driver’s license within 20 working days or before the defendant’s first court appearance date, whichever is later. The judge may assess an

administrative fee not to exceed $20 ($20 fee effective 1/1/2008; the $10 fee is effective until 1/1/2008). Section 521.026, T.C.

Maintain a record of payment receipt. TMCECFORM:JUDGMENT—

DISMISSAL BY THE COURT.

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6. Fail to Report Change of Address or Name on Driver’s License.

a. The defendant presents the court evidence of changing address or name on his/her driver’s license.

b. Clerk makes a copy of new paper driver’s license with new address or name.

c. Defendant must pay $10 administrative fee (fee effective 1/1/2008) unless waived by judge.

d. Clerk receipts payment.

e. Clerk prepares judgment for judge and presents judgment with evidence of

compliance and receipt of payment to judge. f. Judge reviews evidence and if sufficient, signs

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

g. Clerk enters the dismissal judgment on the docket.

h. Clerk archives case.

The judge may dismiss the charge if the defendant changes his/her driver’s license address not later than the 20th

working day after the date of the offense pays a $20 administrative fee (fee effective 1/1/2008). The judge may waive the fee in the interest of justice. Section 521.054, T.C. Note: Some judges require the defendant to appear in open court with evidence of compliance.

Maintain copy of receipt.

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

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

b. Defendant presents proof that restriction or endorsement was imposed in error and defendant establishes that fact.

c. Defendant pays $10 administrative fee (fee effective 1/1/2008).

The judge may dismiss the charge if: • Restriction or endorsement was

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

• DPS removes the restriction or endorsement before the

defendant’s first court appearance and the defendant pay an

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d. Clerk copies evidence and receipts payment of the fee (fee effective 1/1/2008).

e. Clerk prepares judgment.

f. Clerk presents judgment and evidence to judge.

g. Judge reviews evidence and if sufficient, signs judgment dismissing the case and orders payment of administrative fee (fee effective 1/1/2008).

h. Clerk enters the dismissal judgment on the docket.

i. Clerk archives the case.

The case cannot be noted as dismissed in the court management software or docket book until the judge signs the dismissal judgment. 8. Operate Vehicle with Defective Required Equipment

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

a. Defendant presents proof of remedying the defect.

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

The judge may dismiss the charge if the defendant remedies the defect before the defendant’s first court appearance and pays an

administrative fee not to exceed $10 (fee effective 1/1/2008).

The judge has no authority to dismiss a charge of defective equipment involving a commercial motor vehicle.

c. Clerk accepts and receipts payment of $10 fee (fee effective 1/1/2008).

d. Clerk prepares dismissal judgment for judge’s signature.

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

•

Affix unauthorized sunscreening device to motor vehicle, Section 547.613(a)(2);

Brakes improperly adjusted, Section 547.402;

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

f. Clerk may now enter dismissal judgment on docket.

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

• • • • • • •

Brakes not maintained in good working order, Section 547.402; Brakes not on all wheels when required, Sections 547.401 & 547.802;

Clearance (or side markers) improperly mounted), Section 547.354;

Defective brakes or no brakes, Sections 547.401 & 547.408; Defective exhaust emission system, Section 547.605; Defective head lamps, Section 547.321, 547.302 & 547.801; Defective parking lamps, Section 547.383; • • • • • • •

Defective safety glazing material, Section 547.608;

Defective stop lamp(s), Section 547.323;

Defective tail lamp(s), Section 547.322;

Defective or no windshield wiper, Section 547.603;

Headlamp improperly located on motorcycle, Section 547.801; Improper flashing lights, Section 547.702(c);

Improper use of back-up lamps, Section 547.332;

•

Improperly directed lamps (over 300 candlepower), Section 547.305;

Mirror violation (none or improperly located), Section 547.602;

Muffler violation (none,

defective, loud, cut-out, by-pass). Section 547.604;

• • •

No beam indicator, Section 547.333;

No electric turn signal lamps, Section 547.324;

No headlamps (when not equipped), Sections 547.321 & 547.801;

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547.322 and 547.801; • No multiple beam lighting

equipment (or defective), Section 547.333 & 547.801; • • • • • • • • • • •

No parking brakes or defective parking brakes, Section 547.404; No parking lamps, Section 545.383;

No red reflectors on rear, Sections 547.325 & 547.801; No single control to operate all breaks, Sections 547.547.402 & 547.403;

No stop lamps, Sections 547.323 & 547.801;

No tail lamps, Section 547.322 & 547.801;

No two means of emergency brakes, Section 547.405(a); Red lights on front, Section 547.305;

Television receiver, video equipment improperly located (visible to driver), Section 547.611;

Wrong color clearance lamps, 547.305;

Wrong color stop light, license plate light, back-up lamp, signal device, Section 547.332. 9. Expired Motor Vehicle Inspection Certificates expired

less than 60 days.

a. Clerk makes a copy of proof of compliance. Note: Some judges require the defendant to appear in open court with evidence of compliance.

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

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b. Clerk collects $20 fee administrative fee ($20 fee effective 1/1/2008; $10 fee effective until 1/1/2008) and prepares receipt.

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

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

d. Judge reviews evidence and if sufficient, signs judgment dismissing the case and orders payment of administrative fee ($20 fee effective 1/1/2008; $10 fee effective until 1/1/2008).

e. Clerk enters the dismissal judgment on the docket.

f. Clerk archives case.

The judge shall assess an

administrative fee not to exceed $20 ($20 fee effective 1/1/2008; $10 fee effective until 1/1/2008). Maintain a record of payment receipt.

If the inspection certificate is expired more than 60 days, the judge may dismiss the charge. Section 548.605, T.C. The court may not assess a fee. TMCECFORM:JUDGMENT— DISMISSAL BY THE COURT.

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

a. Clerk makes a copy of proof of compliance. Note: Some judges require the defendant to appear in open court with evidence of compliance.

b. Clerk prepares judgment and attaches proof of compliance.

If the inspection certificate is expired more than 60 days, the judge may dismiss the charge if the defendant gets his/her vehicle inspected within 20 working days or before the defendant’s first court appearance date, whichever is later. No fee may be assessed.

“Day” does not include Saturday, Sunday, or a legal holiday. Article 45.003, C.C.P.

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c. Judge reviews evidence and signs judgment. d. Clerk enters the dismissal judgment on the

docket.

e. Clerk archives case.

No fee can be assessed. The case cannot be noted as dismissed in the court management software or docket book until the judge signs the dismissal judgment. 11. Operating a vessel with an expired certificate of

number.

a. Clerk makes a copy of evidence of purchase of new certificate of number (receipt of purchase).

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

signs judgment and orders payment of administrative fee (fee effective 1/1/2008). d. Clerk enters the dismissal judgment on the

docket.

e. Clerk archives the case.

Section 31.021, P.W.C.

The judge may dismiss the charge if the defendant obtains a new

certificate of number not later than the 10th_{working day after the date of}

the offense and pays an

administrative fee not to exceed $10 (fee effective 1/1/2008).

The certificate of number cannot have expired for more than 60 days.

The case cannot be noted as dismissed in the court management software or docket book until the judge signs the dismissal judgment. 12. Possession of Child Passenger Safety Seat System.

a. Defendant brings satisfactory evidence that defendant possesses an appropriate child passenger safety seat system for each child required to be secured in a child passenger safety seat system.

b. Clerk makes note of the evidence. c. Clerk prepares judgment for judge.

d. Clerk gives judgment and evidence to judge. e. Judge accepts evidence and signs judgment.

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

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f. Clerk enters dismissal judgment on docket. The case cannot be noted as dismissed in the court management software or docket book until the judge signs the dismissal judgment. 13. Failure to Wear a Safety Belt.

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

from a physician. The person must present the letter from the physician to the court not later than the 10th_day

after the offense.

(2) The person is employed by the postal service and is performing a duty for that agency that requires the operator to service postal boxes from a vehicle or that requires frequent entry into and exit from a vehicle.

(3) The person is engaged in the delivery of newspapers from a vehicle or is performing a duty for that company requiring the operator to frequently enter and exit a vehicle.

(4) The person is employed by a public or private utility company and is

engaged in the reading of meters or performing a similar duty for that company requiring the operator to frequently enter or exit a vehicle. (5) The person is operating a commercial

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

b. Clerk can make copy of proof or set defendant for hearing before court.

c. Prosecutor must review evidence and present motion to dismiss to the court.

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

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

14. Driving Safety Course (DSC). CHECKLIST 6. 15. Deferral of Final Disposition. CHECKLIST 7. 16. Teen Court. CHECKLIST 8. 17. Failure to Maintain Financial Responsibility

Dismissals.

Section 601.193, T.C. Section 601.053, T.C.

Proof may be provided through: • Motor vehicle liability

insurance policy that complies with Subchapter D;

• Surety bond filed under Section 601.121;

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

or

• Self-insurance under Section 601.124.

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

(1) Be valid on the date and for the time the citation was issued.

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

b. Clerk makes a copy of financial responsibility and verifies coverage is valid.

c. If coverage is NOT valid:

(1) Clerk sets case for hearing before judge.

(2) Clerk sends notice of hearing to defendant.

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

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d. If coverage is valid, clerk prepares dismissal judgment and attaches the following to the judgment:

• Evidence of financial responsibility; and • Documentation

of validity.

e. Judge reviews evidence and signs judgment.

f. Clerk enters judgment on the docket.

Section 601.193(a), T.C. provides that it is a defense to prosecution that the person charged produces in court one of the documents listed in Section 601.053(a) that was valid at the time that the offense is alleged to have occurred.

TMCECFORM:JUDGMENT— DISMISSAL BY THE COURT.

Case cannot be dismissed in the court software or docket until the judge has signed the dismissal judgment. 18. Other Dismissals.

a. Clerk receives motion filed by: (1) Defense:

(a) Clerk date and time stamps the request when received. (b) Clerk provides copy to

prosecutor to review before next appearance date.

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

(c) Clerk provides copy to judge to review before next

appearance date.

(d) Clerk sets case for pre-trial. (2) State:

(a) Clerk date and time stamps the motion as received. (b) Clerk provides motion to

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

judgment and attaches the motion to the judgment.

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

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c. After judgment is signed by judge.

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

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CHAPTER 5

APPEARANCES AND PLEAS

When a defendant makes an appearance in court, the appearance is a formal proceeding by which a defendant submits himself or herself to the jurisdiction of the court. In a criminal court, a plea is a defendant’s response to a criminal charge. The pleas in municipal court are: guilty, nolo contendere, not guilty, and a special plea of double jeopardy.

Only a judge may request and accept a plea from a defendant; a clerk may not ask a defendant for a plea. A clerk may process the plea sheet and payment or request for hearing or trial.

Defendants may make an appearance in person or by attorney (adults only) in open court, by delivering a plea to the court, or by mail. A telephone call does not constitute an appearance.

Nolo contendere (No contest) means that the defendant is not admitting or denying the charge, but is choosing not to contest the charges in court. In municipal court, a plea of no contest has the same legal effect as a plea of guilty. Article 27.02, C.C.P. Double jeopardy is a prohibition against a second prosecution after a first trial for the same offense. Article 27.05, C.C.P.

Checklist 5 Notes

1. Defendant appears at clerk’s office.

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

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

Defendants under the age of 17 must appear in open court with a parent or guardian for all proceedings. See CHECKLIST 21-3.

A clerk cannot ask for a plea, but can ask defendant how he/she wants to handle his/her case. A clerk may also explain options available to a

defendant. A clerk may not advise a defendant about which option to choose. This is legal advice and only an attorney hired by the defendant may give the defendant legal advice. TMCECFORM:PLEA FORM.

CHECKLIST 12.

Payment of fine or an amount accepted by the court constitutes a finding of guilty in open court as though a plea of nolo contendere had been entered by the defendant and constitutes a waiver of a jury trial in writing. Article 27.14(c), C.C.P. Clerks should check with their judges for direction on whether the judge requires the plea in writing. Because this appearance is not before the

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c. Defendants who want to pay fine, but do not have money to pay any or part of the fine.

judge and the clerk must present this information to the judge, the best option is to process a signed plea and waiver of jury trial for the judge to accept.

CHECKLISTS 11and12.

Clerks have no authority to grant extensions or time payments. Clerks may process extensions and time payments on a judge’s orders. 3. Defendant requests a driving safety course (DSC).

4. Defendant requests deferred disposition.

CHECKLIST 6. CHECKLIST 7.

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

a. Clerk must set defendant for a hearing before judge.

b. Clerk should have defendant sign setting notice and give defendant a copy of notice. 6. Defendant requests a trial.

a. Clerk sets case according to whether defendant demanded right to jury trial or requested bench trial; clerk should have defendant sign setting notice, and give copy of notice to defendant.

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

Some courts set pre-trials before trial. It is a good idea to have the defendant sign notice for new court date. See CHECKLIST 9.

TMCECFORM:TRIAL SETTINGS – JURY TRIAL SETTING FORM.

Prosecutor (city attorney or deputy city attorney) is required to be at all trials to present State’s case. Article 45.201, C.C.P.

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CHAPTER 6

DRIVING SAFETY COURSES

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

A. Eligibility

Checklist 6-1a Notes

1. The defendant is eligible for DSC if the offense is not:

•

Speeding 95 per hour or more;

•

25 mph or more over limit;

•

Duty to give information and aid (leaving the scene of an accident);

•

Accident involving damage to vehicle (vehicle is driven or attended)(leaving the scene of an accident);

•

Overtaking and passing a school bus;

•

An offense committed in a construction or

maintenance work zone while workers are present; or

•

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

2. Defendants must have a valid Texas driver’s license or permit, proof of active military duty or proof that defendant is spouse or dependant child of a person on active military duty.

3. Defendants cannot have had a commercial driver’s license when the offense occurred or have a

commercial driver’s license when making the request. 4. Defendants must present the court proof of valid

financial responsibility (usually automobile insurance).

Offense must involve the operation of a motor vehicle under:

•

Subtitle C, Rules of the Road, T.C. (Chapters 541-600);

•

Disobeying warning signs and

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

Juveniles who commit those same offenses are also eligible.

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

5. Defendants cannot have completed a driving safety course/motorcycle operator training course within the 12 months preceding the date of the current offense that is shown on the defendant’s driving record as maintained by the Texas Department of Public Safety.

Exception: If a defendant is charged

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

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course even if the defendant has had a regular driving safety course (one that did not include the four hours of instruction on child passenger safety seat systems).

To determine if a defendant is eligible, the 12-month period of time is calculated from the date of taking the last driving safety course to the date of the current offense. If there are 12 months or more in this period of time, the defendant is eligible; if not, the defendant is not eligible.

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

B. Procedures

1.

Mandatory Driving Safety Course/Motorcycle Operator Training Course (Article

45.0511(b), C.C.P.)

Checklist 6-1b Notes

1. Court receives DSC/MOC request by mail; clerk:

a. Verifies if request was mailed first class mail on or before the appearance date on the citation.

b. Verifies request was received not later than 10 days after the due date on the citation for appearance.

c. Clerk keeps the envelope with the postmark and date stamps “received” for court records.

Amount of time enlarged by “Mail Box Rule.” Article 45.013, C.C.P. Mail Box Rule provides that a document is timely filed with the clerk if it is mailed first class mail on or before the due date and received by the court within 10 days after the due date. “Day” does not include

Saturday, Sunday, or legal holidays. The judge has the discretion to grant a driving safety course after appearance date has passed. Article 45.0511(d), C.C.P.

Only adults may mail in a request for a driving safety course. Defendants under the age of 17 must appear in open court with a parent or guardian to request a driving safety course. For juvenile appearances see CHECKLIST 21-3.

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a. Clerk mails the following to defendant:

•

Plea form;

•

Affidavit form;

•

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

•

Request for copy of proof of valid financial responsibility; and

•

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

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

•

Taking an approved Texas Education Agency approved course or DPS approved motorcycle course;

•

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

•

Due date of completion

certificate, affidavit, and driving record to be submitted to the court.

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

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

a. Clerk explains to the defendant that:

(1) DSC course dismissal only applies to one violation.

(2) Defendant must meet certain qualifications and criteria.

The judge has the discretion to grant a driving safety course after

appearance date has passed. Article 45.0511(d), C.C.P. See CHECKLIST 6-2.

TMCEC FORM:REQUEST FOR A DRIVING SAFETY COURSE.

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

b. Clerk asks the defendant for proof of the following:

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(1) Valid Texas driver’s license or permit, proof of active military duty or proof that defendant is spouse or dependant child of a person on active military duty, and

(2) Proof of valid financial responsibility.

c. Clerk gives the defendant a plea form to enter a plea of guilty or no contest.

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

The driver’s license or permit cannot be a commercial driver’s license or permit. Article 45.0511(s), C.C.P.

Article 45.0511(b)(6), C.C.P. If there are any issues about whether the insurance is valid or sufficient for the defendant to request a driving safety course, give the insurance information to the judge to make a decision.

Clerk cannot ask the defendant, “How do you want to plea?” This is a judicial duty. The clerk may explain the requirements or that the judge requires the defendant to complete the plea form when requesting

DSC/MOC. The clerk processes the plea form for the judge to accept. TMCECFORMS:PLEA FORM OR REQUEST FOR A DRIVING SAFETY COURSE (includes plea).Article 45.0511(b)(2), C.C.P.

e. Clerk gives the defendant required affidavit to read.

(1) Clerk administers oath to defendant for affidavit. Defendant raises right hand and swears that the information contained in the statement is true and correct.

Note: Clerks and deputy clerks have authority to administer this oath. Section 602.002, G.C.

TMCECFORM:AFFIDAVIT FOR DRIVING SAFETY COURSE.

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

Note: Affidavit is not due until the end of the 90 day period, but most

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

(2) After defendant swears to the affidavit, defendant signs affidavit. (3) Clerk signs jurat (certificate of person

administering oath) and impresses court seal on affidavit.

(4) Clerk files affidavit with defendant’s case.

TMCECFORM:AFFIDAVIT FOR DRIVING SAFETY COURSE.

Clerks have authority to administer any oath. Section 602.002, G.C.

f. Clerk gives the defendant information about requesting a certified copy of the defendant’s driving record from the Texas Department of Public Safety.

Note: The judge may require the defendant to pay a $12 fee (fee effective 1/1/2008) and upon payment of the fee, the court may use the TexasOnline to request the certified copy of the defendant’s driving record. The clerk is required to remit the fee to the State

Comptroller without deduction or proration quarterly with the other court costs. Article 45.0511(c-1), C.C.P.

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

g. If defendant’s request is not timely filed but defendant was not advised of right to a driving safety course, defendant still has right to request a driving safety course or motorcycle operator training course.

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

5. Court cost due upon approval of DSC request: a. Clerk collects all state and local court costs. b. The clerk collects an administrative fee in an

amount of not more than $10.

c. Court costs and fee are nonrefundable.

Section 133.101, L.G.C.

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

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

7. Clerk prepares judgment for judge to sign.

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

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

This date should be 90 days from date that judge signs judgment deferring imposition of judgment granting the driving safety course.

A driving safety course/motorcycle operator training course is granted when the judge enters judgment on the defendant’s plea of no contest or guilty and defers imposition of the judgment granting the defendant 90 day to complete the course. Article 45.0511(c), C.C.P.

TMCECFORM:JUDGMENT –DRIVING SAFETY COURSE/MOTORCYCLE

OPERATOR TRAINING SAFETY PROGRAM GRANTED.

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

approved by the Texas Education Agency or a course under the motorcycle operator training and safety program approved by the

designated state agency under Chapter 662, T.C. (which is DPS);

b. Present the court a certificate of completion of the driving safety course or verification of completion of the motorcycle operator training course;

c. If the violation was a child restraint violation, the defendant must present to the court a special driving safety course certi

INTRODUCTION AND ACKNOWLEDGMENTS