delineating the four rules of expunction for kids recorder/2002/aug02recorderno2… · and finishes...

©2002 Texas Municipal Courts Education Center, Austin. Funded by a grant from the Court of Criminal Appeals.

Volume 11 AUGUST 2002 No. 7

Delineating the Four Rules of Expunction for Kids

I N S I D E T H I S I S S U EArticles:Deferred Adjudication is Not DeferredDisposition by Ryan Kellus Turner .... 13Delineating the Four Rules of Expunc-tion for Kids by James D. Bethke ......... 1Police Interactions with Juvenilesby the Honorable Pat Garza ............. 4Shame-based Sentencing: Thinking “Outsideof the Box” or “Out of Bounds”? by RyanKellus Turner .................................... 1Columns:Around the State ............................... 2From the General Counsel ................ 3Resources for Your Court ............... 16Tech Corner .................................... 19From the Center .............................. 20TMCEC Registration Form ............ 23

Expunction continued on page 9

By James D. BethkeDirector, Task Force on Indigent Defense

In general, “expunction” is a legalprocess of eliminating any officialrecords or files whether written orelectronic relating to an arrest1. Theterm “expungment” is also commonlyused for this process—even appearingin the Alcoholic Beverage Code—andwhile it is proper, is probably notpreferred to expunction.

In 2001, the Texas Legislature addedCode of Criminal Procedure Article45.0216, Expunction of Certain ConvictionRecords of Children. One of the purposesof Article 45.0216 was to simplify theprocess of erasing a child’s—that is aperson who has not turned 17—recordof conviction for a conviction of anon-jailable misdemeanor. Theprovisions of Article 45.0216, Code of

Criminal Procedure do not seem toapply to traffic offenses under theTransportation Code or ordinance. Aspart of this legislative reform, Code ofCriminal Procedure Article 58.01,Sealing Files and Records of Children injustice and municipal court cases wasrepealed, although those provisionscontinue to apply to offensescommittee before September 1, 2001.Article 45.0216 is limited in scope anddoes not apply to minors convicted ofan offense under Chapter 106 of theAlcoholic Beverage Code, Chapter 106of the Health and Safety Code(tobacco), or individuals convicted ofthe offense of failure to attend schoolunder Section 25.094 of the EducationCode because these convictions have

existing statutes regarding theirexpunctions.

The following is an analysis of the foursets of rules governing expunctions ofthe records of offenses committed byminors or children in municipal orjustice court. These rules are separateand distinct from the expunctionprocedures provided under Chapter 55of the Code of Criminal Procedure. Allof the provisions discussed here relateto expunctions ordered by municipaljudges in municipal court cases.

Rule One

Code of Criminal Procedure Article45.0216, Expunction of Certain Conviction

Shame-based Sentencing:Thinking “Outside of the Box”

or “Out of Bounds”?By Ryan Kellus Turner

Program Attorney & Deputy Counsel, TMCEC

In our last issue, we discussed deferreddisposition and the authority of themunicipal judge to impose “reasonableconditions”1 as a term of probation.Critical to our discussion was thefundamental question: What constitutesa reasonable condition?

While case law provides limitedguidance, scholars agree that amunicipal court’s discretion is broad butnot unlimited.2 Judges “should prescribeadditional conditions to fit theparticular situation. Probationconditions must be reasonably related

Shame continued on page 11

Municipal Court Recorder August 2002

Texas Municipal CourtsEducation Center

1609 Shoal Creek Boulevard, Suite 302Austin, Texas 78701

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

Web page: www.tmcec.com

FY02TMCA Officers

President: Robert Kubena, HallettsvillePresident-Elect: Joe Pirtle, Seabrook1st V.P.: Sharon Hatten, Midland2nd V.P.: Edwin L. Presley, BenbrookSecretary: Vicki Gerhardt, New LondonTreasurer: Robert C. Richter, MissouriCityPast President: Glenn Phillips, Kilgore

DirectorsRobert Doty, Lubbock . Ninfa Mares, FortWorth . Patsy Haynes, Kilgore . RobinSmith, Midland . Dan Francis, Robinson .David Perkins, New Braunfels . TimothyFox, Brazoria . George Bill Robinson,Yorktown . Robin Ramsay, Denton .Robert Barfield, Pasadena

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. Roxi Salinas, Communications Assistant

Published by the Texas Municipal CourtsEducation Center through a grant from theTexas Court of Criminal Appeals. Subscrip-tions are free to all municipal court judges,clerks, prosecutors, and office personnelemployed by the municipal court.

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

TMCA Annual MeetingThe 2002 Annual Meeting of the Texas Municipal Courts Association will bringthe Association together to prepare for the future of municipal courts. CorpusChristi has been selected to host the gathering because the City of CorpusChristi Municipal Court is on the forefront of court technology. Educationalprograms about technology and a visit to the Corpus Christi Municipal Court areboth scheduled for the Meeting. Educational opportunities for members willinclude sessions to prepare for 2003 legislative activity. An in-depth session onhow the Legislature works and what to expect in the 2003 Session will bepresented. An annual business meeting will also be held to conduct importantwork of the organization.

Meetings will be conducted at the host hotel, the Omni Corpus Christi Marina.Special lodging rates of $80 (single occupancy) and $104 (double occupancy)have been secured for participants. Participants may have one guest stay at noextra charge using the single occupancy rate. Contact the hotel directly to reservea room: toll-free 800/843-6664. The hotel is located at 707 North ShorelineBoulevard in Corpus Christi (78401). A limited number of rooms at the specialmeeting rate will be held for TMCA members until October 3, 2002.

The registration fee is $95 and covers all educational sessions, materials,President’s Reception, and the Association’s Annual Dinner and Banquet whichwill take place aboard the World War II Aircraft Carrier, USS Lexington.Additional banquet tickets may be purchased for $45 each. For a registrationform, contact the Honorable Robert C. Richter, Jr., City of Missouri City, 1350NASA Road One, Suite 200, Houston, TX 77058, telephone: 281/333-9229.

Best of Texas – 2002:Technology

On September 24, 2002, at the Omni Austin Hotel-Southpark, the Best of Texas-2002 A Government Technology Executive Leadership Forum will be held. Theconference is free for government employees and designed for persons whoinfluence or participate in technology decisions or implementations. Theconference begins at 9:00 a.m. and concludes at 4:00 p.m. Topics include DigitalGovernment from A to Z; Where are We? Where Should We Be?; Web Development;Document Imaging Management; Cyber-Security; Legacy Systems; Geographic InformationSystems; Disaster Recovery; and the Best of Texas Case Studies. To register, go onlineto www.govtech.net or call 800/917-7732 ext. 393.

August 2002 Municipal Court Recorder

FROM THE GENERAL COUNSELW. Clay Abbott

Juvenile ConfessionsIn this edition you will find anexcellent article on juvenile custodialstatements by Associate Judge PatGarza of Bexar County, Texas. It wasfirst published in the State Bar JuvenileLaw Newsletter (June 2002). Since manymunicipal judges act as magistrates inthis regard, we hope the article will behelpful. Judge Garza squarelyaddresses several thorny issues of law,including juvenile processing offices,parental notification, and parentalpresence. The article is not directed tomagistrates in particular, but containsan excellent analysis of the law.

The law, as Judge Garza eloquentlypoints out, is made to protect thejuveniles in police custody and toensure that choices the juvenile makesare as voluntary and informed aspossible. Plus, any article that startsand finishes with “Harry Potter” can’tbe too bad.

For a more hands-on treatment ofjuvenile warnings see Chapter 13H ofthe TMCEC Bench Book v.4, and the“Magistrate’s Verification andCertification for Statement of aJuvenile” form found in the TMCEC2001 Forms Book.

Attorney GeneralOpinion JC-0516 andCollection Contracts

With the passage of SB 1778 duringthe 77th Legislative Session a little overa year ago, there has been a flood oflaw firms and collection agenciesanxious to help collect unpaidmunicipal cases for a fee of 30 percentof the total they collect. The fee ischarged to the defendant and is

disclosed prior to the fine or othercost. The bill was hailed as anothertool to be used for more effectivecollection and enforcement ofjudgments in municipal courts.

An immediate issue was raised aboutwhether cases in which the defendantfailed to appear and no plea orjudgment was made were “debts andaccounts receivable such as fines”under the newly amended Article103.0031, Code of CriminalProcedure. The Attorney Generalsquarely addressed the issue on June24, 2002 in Opinion No. JC-0516 andopined that suggested fines wereneither debts nor accounts receivableunder the law.

The concept that a judgment must beentered before a fine is due wouldseem to be fairly elementary. Thatconcept is the linchpin to the opinion.The opinion also cites language inArticle 103.0031, Code of CriminalProcedure referring to amounts“ordered paid by the court.” Again ajudgment based on a plea or finding ofguilt is the mechanism used by thecourt to order payment.

You may ask what difference does thismake? The additional fee of 30percent paid by the defendant is notauthorized where there is no order orjudgment made before referral forcollection. The existing rules requiringthat any moneys collected first go tostate court cost are still in effect wherethere has been no previous order bythe court. In other words, on failure toappear cases, any contractual fee forcollection comes out of themunicipality’s funds, not thedefendant’s or the state’s funds. If,under contract, the collection entity

keeps a partial payment on a casewithout an order and fails to collect allstate costs, the municipality pays thecost it never even saw due to itscollection contract.

Many municipalities have enteredcontracts that put them undertremendous liability exposure underthe A.G. opinion and a common sensereading of the statute. Often this hasbeen based on legal advice from thefirms or agencies benefiting from thecontract. If your municipality hassigned such a contract, the issuesraised by Opinion JC-0516 need to bebrought to the attention of the cityattorney and city management. If yourmunicipality has not entered acontract, make sure the contractingentities in your city are aware of theseissues.

The collection folks swear that theproblem will be solved legislatively. Myconcern is that the obvious fixes wouldbe to give judicial authority tocollection companies and violatepractically ever constitutionalprotection provided to citizens accusedof Class C misdemeanors in Texas.The intrinsic conflict is not a new onefor municipal courts. The intrinsicconflict is whether municipal courtsare actual criminal courts or simplyadministrative taxing machines.Thanks to the most recent opinionfrom the Attorney General, it appearsthat for the time being we remaincourts and not ATMs.

Can a Prosecutor and aDefense Lawyer Marry?The simple answer is yes. The largerquestion is who would want eitherone? Joking aside, the issue of whatconflicts might arise in that situation


Police Interactions with Juveniles andTheir Effect on Juvenile Confessions

By The Honorable Pat GarzaAssociate Judge, Bexar County

“It is our choices, Harry, that show what wetruly are, far more than our abilities.”

– Albus Dumbledore*Professor Dumbledore in Harry Potterunderstood what we have been tryingto teach our children for years. HarryPotter, while blessed withextraordinary abilities, found his futureshaped and molded by the choices hemade. Like Harry, many kids todayalso have extraordinary abilities. Someare blessed with great intelligence,some have a natural charisma, someare born with physical beauty or haveobtained unique athletic ability, butwhen it is all said and done their futureand the path they travel will boil downto the choices they too make. While asingle indiscretion may not change achild’s life, their continuous choiceswill inevitably mold who they truly are.For many kids, a single unlawful act orunfortunate circumstance can betraced back to a single moment. Thatsingle point in time when that child

had a choice. They knew the rightthing to do, but chose the alternative.

In the area of juvenile confessions, theLegislature has enacted laws to shieldchildren from making difficult choicesbefore they are ready. You see, thebetter a parent teaches his child torespect and cooperate with authority,the more that child needs theprotections of the Family Code. TheLegislature and the courts inrecognizing the tenuous predicamentthat children are placed, haveattempted to assist them with theirchoices when interacting with lawenforcement officers. Their lack ofexperience and judgment ispresupposed in the legislation andfailure by a law enforcement officer toadhere to these protective provisionsmay affect the voluntary nature of thechild’s interactions with him.

Once a law enforcement officer hastaken a child into custody, failure toproperly handle and transport thatchild may render his confession or

evidence obtained inadmissible, even ifthe officer has fully complied withSection 51.095 (Confession Statute) ofthe Family Code. The proper handlingand delivery of the child duringcustody (and in compliance with thecode) may be key in establishing that aconfession is voluntary.

A statement by a juvenile thatis otherwise admissible undersection 51.09 [51.095] may befound to be inadmissible if therequirements of section52.02(a) are not followed.Comer, 776 S.W.2d at 195-96.

Section 52.02 of the Family Code is anexpression of the Legislature’s intentto restrict involvement of lawenforcement officers to the initialseizure and prompt release orcommitment of the juvenile offender.It mandates that an officer (aftertaking a child into custody) must“without unnecessary delay, andwithout first taking the child to anyplace other than a juvenile processing

was the topic of Ethics Opinion 539handed down by the ProfessionalEthics Committee of the State Bar ofTexas. The reaction to the opinion hasbeen fiercely negative.

The basics of the opinion are that aconflict exists on behalf of bothspouses, even if the spouses do notdirectly oppose each other. Thedefense attorney has a conflict only oncriminal cases in the county (and,presumptively, in the municipality) inwhich the spouse works. This positionis stated but never analyzed. The

conflict may be waived after fulldisclosure. The opinion goes on thatthe prosecutor and the prosecutor’soffice has an unwaivable and seeminglyirresolvable conflict. Suggestions arenot made how to proceed in thesecases.

The opinion has been attacked by theTexas District and County Attorney’sAssociation, many defense lawyers,several courts, and a large number offemale attorneys who feel the opinionis flawed, overbroad, and sexist.TDCAA requested the committee to

reconsider, which they refused. Thesuggestion of the committee is thatTDCAA ask the Supreme Court torewrite the Rules of ProfessionalConduct. Of course, litigation and pretrialmotions to dismiss have flourished andare likely to filter down to our courtssoon. TDCAA has made available both abrief and a motion to address challengeson prosecutions based on Opinion 539.Both of those well-researched documentscan be found at www.tdcaa.com or linkedthrough the TMCEC web site atwww.tmcec.com.B

From the General Counsel continued from page 3

*Rowling, J.K., Harry Potter and the Sorcerer’sStone (1997)


office” take the child to any one of sixenumerated places. By the clearlanguage of the statute, it is notmerely a question of whether theofficer does one of the sixenumerated options withoutunnecessary delay, but also whether hetakes the juvenile to any other placefirst.1

A brief history of the evolution andcreation of Sections 52.02 and 52.025would be helpful in understanding thecourt’s interpretation of strictadherence to these provisions.

The first significant case interpretingSection 52.02 with respect to itsrelationship to a juvenile’s confessionwas Comer v State, 776 S.W.2d 191 (Tex.Crim. App.—1989). In Comer, theCourt of Appeals upheld theadmission of the written confession inthe criminal trial on the grounds thatcompliance with Section 51.09(b)[now Section 51.095] was all that wasrequired. Section 51.09(b) is theprovision that requires that a lawenforcement officer who wishes toobtain a confession from a child totake that child to a neutral magistratein order to ensure that the confessionis being freely and voluntarily given.2The Court of Criminal Appealshowever, reversed, rejecting theargument that compliance withSection 51.09(b) would trump anySection 52.02 violation. At the timethat Comer was decided, Section 52.025(juvenile processing office exception)did not exist, and as a result, lawenforcement had no exceptioncontained in the statute to for theprocessing of a juvenile offender(including the taking of his statement).

In 1991, three years after Comer,Section 52.02 was amended andSection 52.025 was created toauthorize police officers to temporaryhold juveniles in a “juvenile processingoffice,” for certain specific purposes.These changes gave law enforcement aplace (and an authorization) to take

confessions of juveniles while they arein custody.

In 1999, the Court of CriminalAppeals decided John Baptist Vie Le v.The State of Texas, 993 S.W.2d 650(Tex. Crim. App.—1999), the secondsignificant decision pertaining toviolations of Section 52.02.

John Baptist Vie Le was arrested by alaw enforcement officer who wantedto take the child’s statement. As inComer, the officer complied with therequirements of Section 51.09(b), butfailed to fully comply with Section52.02 by not having the child in ajuvenile processing office when heobtained the child’s confession. Thecourt concluded that appellant’sstatement was taken in violation of theFamily Code, and reversed andremanded the case for the appealscourt to consider whether or not theadmission of the improper statementhad harmed the appellant.

In deciding Le the Court of CriminalAppeals, while making reference toComer powerfully stated:

...we must not ignore theLegislature’s mandatoryprovisions regarding the arrestof juveniles. We informed thecitizenry, a decade ago in aunanimous opinion, of theLegislature’s clear intent toreduce an officer’s impact on ajuvenile in custody. Today weremind police officers of theFamily Code’s strictrequirements.3

Section 52.02 of the Family Codeclearly requires that an officer deliverthe child (to one of six locations)“without unnecessary delay.” InRoquemore v. State,4 a Court of CriminalAppeals opinion, the officer instead oftaking the respondent directly to ajuvenile processing office, as requiredby the statute, took the child (at thechild’s request) to the place where thechild had said stolen property was

hidden. In suppressing the confessionthe court stated:

The procedure and optionsare clear in Section 52.02(a),and first taking the juvenile, athis own suggestion, to thelocation of stolen property isnot enumerated. Because theappellant was not transportedto the juvenile division“without first being taken toany other place,” the officersviolated Section 52.02(a).Comer, 776 S.W.2d at 196-97.5

While most cases have found thatmost delays are unnecessary, inContreras v. State, another Court ofCriminal Appeals opinion, it was a“necessary delay” to hold a child in apatrol car at the scene of an offensefor 50 minutes before bringing her tothe juvenile processing office to obtaina statement. The court accepted thestate’s argument that the delay wasnecessary because police wereattending to the victim andinterviewing witnesses to the offense.6The delay was considered deminimus.

Requirement of ParentalNotification Upon Arrest

Section 52.02(b), F.C. states:

A person taking a child intocustody shall promptly givenotice of his action and astatement of the reason fortaking the child into custody,to:

(1) the child’s parent,guardian, or custodian; and

(2) the office or officialdesignated by the juvenilecourt.

In Gonzales v. State,7 the HoustonCourt of Appeals [1st Dist.]suppressed the juvenile’s confessionbecause Section 52.02(b)(1) was notsatisfied where the evidence at thehearing on the juvenile’s motion tosuppress did not show that the


juvenile’s parents had been notifiedwhile the officers took the juvenile’sconfession. However, in February2002, the Court of Criminal Appealsreversed and remanded Gonzales forconsideration of a causal connectionbetween the failure to notify thejuvenile’s parent of his arrest and thereceipt of his confession.8

In State v. Simpson,9 the Tyler Court ofAppeals affirmed the trial court’ssuppression of a juvenile’s confessionpursuant to Section 52.02(b) becausethe juvenile’s mother was not notifieduntil the Sunday evening following hisarrest at 11:00 a.m. on the precedingFriday.

In In the Matter of C.R.,10 police failedto notify the respondent’s mother thather son had been taken into custodyand the reason for doing so. At aminimum, one hour elapsed from thetime the respondent was taken intocustody until the initial contact withhis mother. In addition, policediscouraged her from coming to thepolice station to see her son andultimately notified her only when therespondent was taken to the juveniledetention facility. The Austin Court ofAppeals held that the requirement ofparental notice had been violated andthat the written statement given duringthe period of violation should havebeen excluded from evidence.11

It is the responsibility of the persontaking the child into custody to notifythe parents of the arrest with astatement of the reason for taking himinto custody. In Pham v. State,12 thepolice officer arrested the child atschool, took the child to a magistrateto have the child’s warning explained,then returned the child to a processingoffice to take his statement, but failedto contact the child’s parents. The trialcourt admitted the confession, but theHouston Court of Appeals [1st Dist.]reversed stating:

The duty to notify a child’sparents belonged to the ‘person

taking a child into custody,’ i.e.,Officers Hale and Parish, and[*12] their supervisor, OfficerMiller in this case. It was theirresponsibility to see to it thatnotice of appellant’s arrest, with astatement of the reason for takinghim into custody, was promptlygiven to appellant’s parents andthe official designated by thejuvenile court. These officers wereapparently oblivious to the factthey had such a duty, and they didnot perform as required.13

In Hill v. State,14 a Tyler Court ofAppeals decision, the child wasarrested shortly before 9:25 a.m., buthis mother was not contacted until1:45 p.m., four hours and 20 minuteslater. The detective never attempted tocontact anyone, testifying he was busyworking the crime scenes, collectingevidence, and taking the child’sstatement. The court found that whilethe four hour and 20 minute delaystanding alone might not warrantreversal pursuant to Section 52.02(b),the impact of the delay was enhancedby the fact that the juvenile was in theprocess of deciding whether or not towaive important constitutional rights.It is also noteworthy that his motherwas reached by telephone on the veryfirst attempt immediately after thechild’s confession had been obtainedfollowing his on-again off-againattempts to claim his constitutionalrights. There was scant direct evidencein the record of any efforts to contacther or anyone else until after theconfession was obtained. Under thesecircumstances the court held that thiswas not prompt notification underSection 52.02(b) of the Family Code.15

The Juvenile Processing Office

The juvenile processing office is atemporary location that allows anofficer to do certain specific things.The options in Section 52.02(a) arepermanent options, while the juvenileprocessing office is a temporary option

(no longer than six hours). If theofficer decides to take the child to ajuvenile processing office, he musteventually take the child to one of theoptions in Section 52.02(a). One officecannot be both a juvenile processingoffice and one of options listed inSection 52.02(a).16

In Anthony v. State,17 the 4th Court inSan Antonio ruled that a statementwas illegally obtained and could not beadmitted to support a criminalconviction because the officers did notcontact the juvenile officer or take therequired step of processing defendantin an area specifically utilized forjuveniles.

In In re R.R.,18 a Corpus Christi Courtof Appeals case, officers took thejuvenile directly to the police station,but because no evidence showed thatthe juvenile was detained in an officedesignated as the “juvenile processingoffice,” the confession was illegallyobtained and, therefore, inadmissible.

But see also, Williams v. State,19 wherethe officer picked up Williams at theBexar County jail because he had givena false name to the arresting officer.The officer who picked up Williamsdetermined that he was a child andtook the child to the homicide officeto take the child’s statement. Thehomicide office was not a designatedjuvenile processing office. The juvenileprocessing office that was normallyused was being remodeled and underconstruction. A second juvenileprocessing office was locked andunavailable. The court stated that thepurpose for requiring juveniles to beinterrogated in specially designatedareas is to protect them from exposureto adult offenders and the stigma ofcriminality. Because no one else was inthe homicide office at the timeWilliams made his statement, thispurpose was fulfilled. To hold thatWilliams’ statement was inadmissibleunder these circumstances would be toplace form above substance. The court


also noted:

... the interest in achieving thepurpose of sections 52.02 and52.025 is somewhatdiminished in this case, giventhat Williams had already beenexposed to adult offendersand the stigma of criminalitywhen he was booked into theBexar County Jail as a result ofhis own misrepresentations.20

Parental Presence In TheProcessing Office

The issuance of warnings to the childas required by Section 51.095(Confession Statute) and the receipt ofa statement by the child under Section51.095 must be done in the JuvenileProcessing Office.21

Section 52.025(c) states:

(c) A child may not be leftunattended in a juvenileprocessing office and is entitledto be accompanied by the child’sparent, guardian, or other custodianor by the child’s attorney[emphasis added].

While Section 51.095 (ConfessionStatute) does not mandate that aparent be present during the taking ofa confession nor that the magistrateadvise the juvenile that he has a rightto have a parent present, Section52.025(c) does mandate that theconfession and the required warningsbe received in the juvenile processingoffice, and in the juvenile processingoffice the child does have a right to beaccompanied by his parent, guardianor attorney. If an officer complies withthe provisions of Section 51.095,Section 52.02, as well as Section52.025, the child has a right to have hisparent, custodian, or attorney presentduring the confession.

In In the Matter of C.R.,22 the AustinCourt of Appeals stated that theLegislature may well have concluded

that juveniles are more susceptible topressure from officers andinvestigators and that, as a result,justice demands they have available tothem the advice and counsel of anadult who is on their side and acting intheir interest.

Section 52.025(c) appears to take thatintent one step further. Theentitlement to having a parent presentin the processing office is not lessenedbecause an officer is attempting toobtain a statement from the child. Infact, the reverse is probably true.Section 51.095 governs how toproceed in the taking of a statementof a child in custody, but Section52.025 governs how to proceed if thechild is not delivered to one of the sixstatutory locations. If the officer electsto continue his contact with the childit must be done in the processingoffice and the child has right to beaccompanied by his parent (in theprocessing office), irrespective ofwhether or not the officer wants to geta statement from the child. An officerwho has taken a child into custody andwho wishes to take the child’sstatement should notify the child’sparents of the arrest, take the child toa processing office, fully comply withSection 51.095, and if the childrequests, allow him to be accompaniedby his parent or guardian.

Section 52.025(b) clearly states that thechild has right to be accompanied byhis parent, guardian or attorney. Whatif the provision had only stated thatthe child had a right to have hisattorney present? Would the courts nothave already required law enforcementofficers to advise the child of his rightto have his attorney present. Whatwould be the legislative intent to givethe child the right to have his attorneypresent if not to advise him of hisrights and to assist him in all mattersconducted while in the processingoffice (i.e., the warnings preceding a

confession and the giving of aconfession itself). The Legislature hasattempted to give the child assistancein the processing office by giving himthe right to have his attorney present(or parent). If it is the legislative intentthat the child have assistance in theprocessing office, why wouldn’t itintend to have someone notify thechild of this right? The irony is, onereason for giving the child the right tohaving his parent or attorney present(in the processing office) would be toassist him in understanding andadvising him regarding his right tohaving his parent or attorney present.There are many questions stillunanswered regarding parentalpresence. Is there truly a duty toinform the child of this right, and ifso, whose duty is it? Can the parentclaim the right for the child (asguardian)?

It should also not be assumed that theright to be present belongs to theparent. The parent clearly has a rightto be notified of the arrest, but thereis no provision that specifically givesthe parent the right to be present inthe processing office or during aconfession. It does not appear that anofficer could refuse a child’s request tohave his parent or guardian present inthe juvenile processing office, butrefusing the parents request to bepresent, while not recommended, isstill debatable. I have found no Texasauthority which entitles a parent orguardian to be present during thetaking of a statement. But, in somejurisdictions courts have held that aminor’s request, made during custodialinterrogation, to see his parentsconstituted an invocation of theminor’s Fifth Amendment right toremain silent.23 While a statement neednot be taken at a juvenile processingoffice, if it is, all of the requirementsof Section 52.025 should be compliedwith.


Causal Connection and TaintAttenuation Analysis

In Gonzales v. State,24 police compliedwith all the requirements of Section51.095 (Confession Statute) andSection 52.02(a) (Release or Deliveryto Court Statute), but failed to notifythe child’s parents of his custody asrequired by Section 52.02(b). TheCourt of Appeals disallowed theconfession for failure to promptlynotify the parents of the child’s arrestas required. The Court of CriminalAppeals, however, reversed andremanded for consideration of acausal connection between the failureto notify the parent (upon taking achild into custody) and the receipt ofthe confession.25

The Court held that Section 51.095 isconsidered an independentexclusionary statute. It sets out whatmust be done before the statement ofa juvenile will be admissible. Thereasonable inference is that if thestated conditions are not met, thestatement of the child will not beadmissible.26 However, the violation ofSection 52.02(b) does not implicate theprovisions of Section 51.095 and thereis no clear legislative intent to suppressa statement under that section when aviolation is detected. The Courtthrough Section 51.17 of the FamilyCode, invoked Chapter 38 of the Codeof Criminal Procedure and found thatif evidence is to be excluded becauseof a Section 52.02(b) violation, it mustbe excluded through the operation ofArticle 38.23(a) of the Code ofCriminal Procedure.

Article 38.23(a) C.C.P. is anexclusionary rule and provides:

no evidence obtained by anofficer or other person inviolation of any provisions ofthe Constitution or laws ofthe State of Texas ...shall beadmitted in evidence.

The Court of Criminal Appeals haspreviously established:

evidence is not “obtained ...inviolation” of a provision oflaw if there is no causalconnection between the illegalconduct and the acquisition ofthe evidence.27

While the juvenile’s parents were nottimely notified of respondent’scustody, the lower court failed toconduct a causal connection analysis todetermine its affect upon the taking ofthe statement. Utilizing the standardset out in Comer, the Court of CriminalAppeals remanded the case to thelower court so that it may ascertain“with any degree of confidence that,”had the appellant’s parents beennotified timely “he would still havechosen to confess his crime.”28

Along with the causal connectionanalysis a court should also conduct ataint attenuation analysis beforeexcluding a confession because of aSection 52.02 violation. In Comer,before reversing the case for failing totransport a juvenile “forthwith” to thecustody of the juvenile custody facility,the Court of Criminal Appealsconducted a taint attenuation analysis,utilizing the four factors from Bell v.State, 724 S.W.2d 780 (Tex. Crim. App.1986). Comer, 776 S.W.2d at 196-97.

Those factors are:

(1) the giving of Miranda warnings;

(2) the temporal proximity of thearrest and the confession;

(3) the ...presence of interveningcircumstances; and

(4) the purpose and flagrancy of theofficial misconduct.

Conclusion

Professor Dumbledore, in HarryPotter, attempted to restrict andprotect Harry from that which Harrydid not yet understand orcomprehend. The Texas courts have

similarly attempted to restrict andprotect juveniles in their relationshipwith law enforcement, until they tooare ready and can fully understand.

Beginning at a very young age, childrenhave been instructed and taught tolisten and cooperate with people whostand in authority over them. Torespect their elders and always tell thetruth. As a society, we attempt to teachthese principles to our children. We doso by design, to allow people inauthority to control and disciplinethem in our absence. For a child whohas learned respect, an unpretentiousrequest by a person in authority in asituation of great consequence may beas effective as a direct order. We asparents are aware of it, teachers andschool administrators are aware of it,and law enforcement is aware of it.The Legislature and the courts haveattempted to keep us from takingadvantage of it. They have done so by(among other things) requiringparental notification when a child istaken into custody and by giving thechild the right to have a parent presentif the child is not immediately releasedor placed in detention. A person canknow what is necessary and implementby choice that which is intended, or hecan use his skill and abilities to securethat which he seeks, at the expense ofthose who looks to him for help andtrust. But then:

“It is our choices, that show what we trulyare, far more than our abilities.”

Table of Authorities

1. Roquemore v. State, 60 S.W.3d 862, No.722-00, 2001 Tex. Crim. App. LEXIS106 (Tex.Crim.App. 9/14/01).

2. Texas Family Code § 51.095.

3. Le v. State, 993 S.W.2d 650 at 655 (Tex.Crim. App. 1999).

4. Roquemore v. State, 11 S.W.3d 395, 400(Tex. App.—Houston [1st Dist.] 2000,pet. granted).

5. Roquemore v. State, 11 S.W.3d 395, 400(Tex. App.—Houston [1st Dist.] 2000,

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pet. granted).

6. Contreras v. State, 67 S.W.3d 181, 2001Tex. Crim. App. LEXIS 58(Tex.Crim.App. June 27, 2001).[Motion for rehearing on petition fordiscretionary review denied, (Sep. 12,2001)].

7. Gonzales v. State, 9 S.W.3d 267 (Tex.App.—Houston [1st Dist.] 1999, pet.granted)

8. Gonzales v. State, No. 47-00, 2002 Tex.Crim. App. Lexis 34 (Tex.Crim.App.February 13, 2002) [rev. & rem. forcausal connection analysis].

9. State v. Simpson, 51 S.W.3d 633 (Tex.App.—Tyler No. 12-00-00235-CR,December 29, 2000).

10. In the Matter of C.R., 995 S.W.2d 778(Tex. App.—Austin 1999, pet. denied).

11. In the Matter of C. R., 995 S.W.2d 778(Tex. App.—Austin 1999, pet. denied).

12. Pham v. State, 36 S.W.3d 199, No. 01-99-00631-Cr, 2000 Tex. App. Lexis8656 (Tex. App.—Houston [1st Dist.]Dec. 28, 2000.

Records of Children, allows a person whohas reached 17 years of age to file arequest in the court where he or shewas convicted to have his or herrecords expunged. To qualify forexpunction, a child must not have beenconvicted of more than one non-traffic Class C misdemeanor orordinance violation. Also, the recordsof a person under 17 years of agerelating to a complaint dismissedthrough deferred disposition or teencourt may be expunged under thisArticle.To file a motion for expunction underthis Article, the person’s request mustbe: 1) in writing; 2) under oath; and 3)contain the person’s statement that heor she has not been convicted ofanother non-traffic Class Cmisdemeanor other than the onesought to be expunged. Although theArticle is silent on the form in whichthe request must be made, in keeping

with the objectives of Chapter 45, theform should be simple and withoutundue formalism.This Article also requires that thejudge inform the child and any parentin open court of the child’s expunctionrights. In addition, the judge mustprovide the child and parent with acopy of Article 45.0216. Thisnotification should be done at orbefore the entry of a judgment ordeferred order.If the court determines that theperson is entitled to expunction, thenthe court shall order the conviction,together with all complaints, verdicts,sentences, and prosecutorial and lawenforcement records, and any otherdocuments relating to the offense,expunged from the person’s record.This means the records must be bothphysically destroyed and referencesdeleted from electronic storage. Afterentry of the order, the person isreleased from all disabilities resulting

Expunction continued from page 1

13. Pham v. State, 36 S.W.3d 199 at 203, No.01-99-00631-Cr, 2000 Tex. App. Lexis8656 (Tex. App.—Houston [1st Dist.]Dec. 28, 2000.

14. Hill v. State, ___S.W.3d ___, No. 12-00-00172-CR; 2001 Tex. App. Lexis 3050(Tex. App.—Tyler) May, 2001.

15. Hill v. State, ___S.W.3d ___, No. 12-00-00172-CR; 2001 Tex. App. Lexis 3050(Tex. App.—Tyler) May, 2001.

16. Le v. State, 993 S.W.2d 650 (Tex. Crim.App. 1999).

17. Anthony v. State, 954 S.W.2d 132, 135(Tex. App.—San Antonio 1997, nopet.).

18. In re R.R., 931 S.W.2d 11, 14 (Tex.App.—Corpus Christi 1996, no writ).

19. Williams v. State, 995 S.W.2d 754 (Tex.App.—San Antonio) 1999.

20. Williams v. State, 995 S.W.2d 754 at 759(Tex. App.—San Antonio) 1999.

21. Texas Family Code § 52.025(b) 4 & 5.

22. In the Matter C.R., 995 S.W.2d 778 (Tex.App.—Austin) 1999.

from the conviction and theconviction may not be shown or madeknown for any purpose. The personwhose records have been expungedmay legally deny that this event neverhappened.This statute prohibits the collection ofany court costs or fees for thisprocedure.Rule TwoAlcoholic Beverage Code Section106.12, Expungement of Conviction ofMinor, allows a person who hasreached 21 years of age to file arequest in the court where he or shewas convicted to have his or herrecords expunged. To qualify forexpungement under Chapter 106 ofthe Alcoholic Beverage Code, theperson must: 1) not have beenconvicted of more than one violationunder Chapter 106 of the AlcoholicBeverage Code; and 2) file a swornstatement that he or she was notconvicted of any violation of this

23. People v. Burton, 6 Cal.3d 375, 491 P.2d793 (1971).





28. Gonzales v. State, No. 47-00, 2002 Tex.Crim. App. Lexis 34 at n8(Tex.Crim.App. February 13, 2002)[rev. & rem. for causal connectionanalysis].

Article is reprinted with permission from theState Bar Section Report: Juvenile Law, Volume 16,No. 2 (Jne 2002).


order, the person is released from alldisabilities resulting from theconviction and the conviction may notbe shown or made known for anypurpose.Section 106.012 does not addresswhether courts may assess and collectcosts for this expungement. Article102.006, C.C.P., however, provides thatcertain fees for expungementproceedings shall be collected. Theones that may apply to municipalcourts include one dollar plus postagefor each certified mailing of notice ofhearing; and two dollars plus postagefor each certified mailing of certifiedcopies of an order of expungement.Rule ThreeCode of Criminal Procedure Article45.055, Expunction of Conviction andRecords in Failure to Attend School Cases,

applies to the expunction of recordsof individuals convicted of Failure toAttend School.2 The request may bemade on or after the person turns 18years of age. Of interest, the applicantmay determine the form of theapplication for expunction under thisArticle. Notwithstanding, theapplication must be: 1) in writing; 2)under oath; and 3) state that theapplicant had no more than oneconviction.The court may expunge the convictionwithout a hearing or order a hearing iffacts are in doubt. Like the previousexpunction rules, if the court grantsthe application for expunction, theapplicant is released from a disabilitiesresulting from the conviction, and theconviction may not be made known forany purpose. Again, this means records

code except for the one that he or sheseeks to have expunged.Unlike Article 45.0216 there is not aspecific requirement under Section106.12 for the court to inform theminor of his or her rights toexpungement under the AlcoholicBeverage Code. However, in theinterest of justice it makes sense forthe court to also inform the minor ofhis or rights under this section atsentencing and provide the minor acopy of this law.If the court finds that the applicant’ssworn statement is true, then the courtshall order the conviction, togetherwith all complaints, verdicts, sentences,and prosecutorial and law enforcementrecords, and any other documentsrelating to the offense, expunged fromthe person’s record. After entry of the


Shame continued from page 1

to the nature and circumstances of theoffense and the history andcharacteristics of the offender.3 Whatlittle literature exists on the subject,suggests a condition of probation willbe held unreasonable and invalid if it:(1) does not relate to the crime for

which the defendant wasconvicted;

(2) relates to conduct which itself isnot criminal; or

(3) requires or forbids conduct that isnot reasonably related to futurecriminality.4

While in many instances imposing apecuniary fine may serve as adeterrent, there are also manyinstances where the benefits ofimposing a fine are limited ornegligible (e.g., juvenile cases where theparent is likely to pay the juvenile’sfine, indigent defendants where theimposition of the fine becomes acommunity service order, and caseswhere the defendants with unlimited

financial resources). Hence in the lastissue, judges were challenged toexamine the circumstances in whichthey order deferred disposition and to“think outside of the box” by customtailoring the terms of probation toaddress the behavior, attitudes, andbeliefs underlying the criminalconduct.The imposition of rehabilitative orremedial conditions to bring aboutpositive changes in the behavior ofdefendants is so widely acceptedamongst judges that it has become acontemporary legal movement(therapeutic jurisprudence). But wheredo judges cross the line? When does“creative sentencing” become anti-therapeutic? When does it constitutean abuse of discretion?Across the NationWhile ultimately it depends on thefacts and circumstance, critics allegethat some judicial efforts to “thinkoutside of the box” have “gone out

and references must be physicallydestroyed including any electronicallymaintained records and references.Courts may not collect any fee orcourt cost for seeking an expunctionunder this section.Rule FourHealth & Safety Code Section161.255, Expungement of Conviction,allows an individual to have tobacco-related convictions expunged if thedefendant satisfactorily completed atobacco awareness program ortobacco-related community service foreach conviction. Although thedefendant must apply for theexpunction, Section 161.255 does notprovide for any requirement for theapplication. Although not necessary,the court may set a hearing on theapplication. All agencies or personswho have a relation to the case,records about the case, or knowledgeabout the applicant should be notified.

At the hearing, if the judge determinesthat the applicant has complied, thenthe court will order all recordsincluding the conviction, along with thecomplaint, verdict, sentence, and otherdocuments to be destroyed.After the order is issued, the applicantis released from all disabilities arisingfrom the conviction. Thereafter like theother expunction rules, the case cannotbe shown or made known for anypurpose. Under the Health & SafetyCode, an applicant may requestmultiple expunctions as long as theapplicant has completed the tobaccoawareness course or the tobacco-related community service for eachconviction that the applicant isapplying for expunction. Since theexpunction provision only applies toconvictions, any charge that isdismissed would not be subject toexpunction.

of bounds.” Consider the followingnational headlines:• In North Carolina, a woman

convicted of vehicularmanslaughter is ordered to make amonthly, hour-long trek around thecounty court house toting a signsaying, “I am a convicted drunkdriver. And as a result I took a life.”

• In Michigan, a physician convictedof health-care fraud was ordered toadvertise his guilty plea in twonewspapers and a professionaljournal.

• In Washington D.C., a lobbyistwho plead guilty to illegal campaigncontributions was ordered to writean essay about his crime anddistribute it to 2,000 Washingtonlobbyists and political actioncommittees.

While critics claim that such probationconditions are cruel, ineffective, andbarbarically reminiscent of the fictionalHester Prynne,5 proponents of such

SummaryThe primary purpose of the rules ofexpunction is to give young personsthe opportunity to start fresh uponreaching a certain age and proceed intoadulthood with a clean record frompast mishaps. These rules also providethe courts some leverage to encourageyoung persons to act moreappropriately and learn from pastmistakes without the consequence ofhaving to report a non-jailablemisdemeanor conviction on everyschool, job, or military application forthe rest of the person’s life. In each ofthe rules, a person whose records havebeen expunged may legally deny thatthis event ever happened.1 Tex. Code Crim. Proc. Ann art. 55.01(Vernon Supp. 2002). This article pertains tothe expunction of criminal records for adults.A proceeding under this article must be filed indistrict court and is beyond the scope of thispaper.2 Tex. Educ. Code Ann. sec. 25.094 (VernonSupp. 2002).

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shame-based sentencing retort thathumiliation has its place in the criminaljustice system and in some cases is thekey to public awareness.In TexasThe controversy surrounding shame-based sentencing is not unknown inTexas.• In Corpus Christi, District Judge J.

Manuel Banales has orderedregistered sex offenders to postnotices on their homes andautomobiles warning the public oftheir crimes (reportedly, oneoffender attempted suicide; twoothers were evicted from theirhome; others reported their homesbeing vandalized). More recentlyJudge Banales ordered an offenderto abstain from sexual intercourseuntil married.

• In Houston, District Judge TedPoe’s notoriety for use of shamesentencing has been perhaps themost highly publicized in the state.On more than 300 instances JudgePoe has ordered probationers tonotify the public of their crimes.Sentences have ranged fromrequiring a man who assaulted hiswife to apologize on the steps ofCity Hall to ordering drunkendrivers to parade in front of a localbar with a sign stating, “I killed twopeople while driving drunk.”Others drunk drivers have beenordered to erect a cross and a Starof David at the accident site andmaintain the symbols and the areaaround them, observe an autopsyof a person killed in a drunkdriving accident, place flowers onthe victims’ graves on their birthdayfor 10 years, and carry the victim’sphotograph(s) in their wallets at alltimes.

Provocative is not NecessarilyShamefulWith such instances in mind, readersshould be mindful that not allprovocative creative sentences are

necessarily shame-based. Case in point,college students in San Angelo accusedof illegally parking on campus in anarea designated for persons with adisability are given the alternative ofexperiencing 21 hours of life oncampus in a wheel chair. While somemay believe this to be shame-based,Presiding Judge Allen Gilbert explainsthat the purpose of the condition is notto shame the offender but to increasethe violator’s awareness of the dailyobstacles encountered by people inwheelchairs.6 Applying the previouslystated criteria, the imposition of such acondition would unlikely be deemed anabuse of discretion.In Municipal CourtsWhile the TMCEC is unaware of anyhighly publicized incidents ofcontroversial creative sentencinginvolving Texas municipal judges, weneed look to neighboring states.• In Rogers, Arkansas, a mother who

pled guilty to failing to properlyrestrain her daughter in safety seatwas ordered by Municipal JudgeDoug Schrantz to write the child’sobituary – even though the child wasalive! What the judge did not know atthe time was that the child had beencritically ill and at times near deathfrom a condition that caused her tostop breathing. In subsequent legalaction it was alleged that due tomedical conditions everyday of thechild’s life had been a tremendousstruggle for the mother and thatJudge Schrantz’s order was morbidand bordered on being sadistic.

• In Lake Charles, Louisiana, CityJudge Thomas P. Quirk sent hundredof offenders to church in lieu ofpaying fines or being committed tojail for not paying fine until theAmerican Civil Liberties Unionintervened in 1994.

ConclusionInstances, such as that involving JudgeShrantz and Judge Quirk, illustrate thepossibility that extreme creative

sentencing can result in a judge beingcaught off guard, subject to mediascrutiny, or even sued in his or herindividual capacity. While presumably ajudge acting in his or her officialcapacity could avoid civil liabilitythrough judicial immunity, this does notinsulate the judge from the nightmareof being sued or from potentialdisciplinary action by the Commissionon Judicial Conduct. As some Texasjudges subject to disciplinary actionhave learned, just because a particularcourse of action is apparently lawfuland not statutorily prohibited does notmean that it is ethical.7 Accordingly,whether the imposition of a creativeterm comes about subsequent to adefendant’s request for deferreddisposition or upon the court’sdetermination of guilt and impositionof deferred disposition, judges areurged to carefully consider the fullimplications of their orders beforeimposing any creative condition. Theabsence of specific guidelines in Article45.051 of the Code of CriminalProcedure suggests that judges andattorneys should be vigilant to avoidunreasonable or unconstitutionalconditions.

_____________1 Article 45.051(b)(8), Code of CriminalProcedure.2 Thomas E. Baker & Charles W. Bubany,“Probation for Class C Misdemeanors: ToFine or Not to Fine is Now the Question”South Texas Law Journal. Vol. 2, No. 2 (1982) at 254.3 Id.4 Id.5 Nathaniel Hawthorne, The Scarlet Letter(1850).6 “Students Sentenced to a WheelchairGet Lessons in Sensitivity” Boston Globe,December 8, 2000 (Section A2).7 In 2000, the Commission on JudicialConduct issued a public statement that ajudge may not ethically hold acommission as a peace officer, despite thefact that the Attorney General has statedthat it is not a violation of state law for amember of the judiciary to hold a peaceofficer’s commission.

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Deferred Adjudication isNot Deferred Disposition

By Ryan Kellus TurnerProgram Attorney & Deputy Counsel, TMCEC

Fort Worth is not Dallas. Oklahoma isnot Texas. Saccharine is not sugar. ACamero is not a Trans Am. Ahamburger is not a steak. A Hyundai isnot a Honda. Star Trek is not StarWars. And as every good Texan knows,Mr. Pibb is not Dr. Pepper.

Similarly, “deferred adjudication”1 isnot “deferred disposition.”2 (More onthis in a second).

It has been alleged by non-Texans(hereafter referred to as foreigners)that, when ordering soft drinks,Texans have the habit of referring toeverything as a “Coke” (regardless if itis Royal Crown Cola, Pepsi Cola, oreven – gasp – Tab Cola). As everyperson who has ordered a “Coke” onlyto receive a cold, effervescent glass ofTab Cola can attest, suchidiosyncrasies may not matter in thecosmic scheme of things, but they cannevertheless leave a bad taste in yourmouth.

The same is true when peopleinadvertently or unknowingly misusesimilar or related terms (see firstparagraph). Things can be similar butnonetheless different.

This brings us to our topic. Thoughsimilar in the sense that they are bothforms of probation and are bothcontained in the Code of CriminalProcedure, “deferred adjudication”(Article 42.12) is not “deferreddisposition” (Article 45.051). Incommemoration of the end of theacademic year and in response to thenumerous evaluations of judges,prosecutors, and clerks who havesilently balked at their peers’ perpetualmisapplication of the two terms, I

commend thee and dedicate this articleto your noble sentiment.

Certainly to some readers, the topic ofthis article may seem like a futileexercise in semantics. Other readersmay wonder why it even matters ifjudges, prosecutors, and clerks use theterms synonymously? While itinevitably sounds a tad pedantic, itmatters for two reasons. First, wordshave meaning. This is especially true inthe legal system where judges andlawyers are expected to critically andskillfully apply terms of law in theirintended manner.3 Second (and pleaseexcuse the infomercial reference),people, especially our peers, judge usbased on the words we use. In otherwords, proper use of legal terminologydenotes an education andunderstanding of the law, while amisapplication of legal terms implies alack of knowledge and understanding.

If you’ve been misapplying the twoterms, you are in good company.Respected publishers, scholars, jurists,and state agencies unfamiliar with thespecifics of municipal and justicecourts have misused the two terms foryears. Thus, it is not surprising thatover the years many municipal judges,attorneys, and key personnel haveconfused the terms.

During the last three years, we havereceived numerous requests fromcourt personnel asking that theTMCEC distinguish between the twostatutes for readers who do not knowthe difference. While not complete,deferred adjudication should bedistinguished from deferreddisposition for the following keyobservations.

1. The Code Construction Act –Chapter 311 of the Government Codeprovides rules for understandingstatutes. Utilizing the CodeConstruction Act, judges and attorneysare required to distinguish deferredadjudication and deferred dispositionfor the following reasons:

A. Legislative Intent – Under Texaslaw, there is a statutory presumptionagainst redundancy in the law. In otherwords, though two statutes may berelated or similar (such as in the caseof deferred adjudication and deferreddisposition) readers are legally requiredto give independent effect to eachstatute if reasonably possible.4 In 1979,the Adult Misdemeanor and ProbationLaw, which created deferredadjudication, expressly limitedprobation authority to courts ofrecord (in effect, denying probationauthority to all justice of the peacecourts and most municipal courts.)5 Inresponse, the 67th Legislature enacteddeferred disposition as part of SenateBill 914.6 The Bill Analysis preparedfor S.B. 914 acknowledges that “theCode of Criminal Procedure did notprovide for deferred prosecution ofClass C misdemeanors in justice andcorporation courts, and the proposedlegislation was intended to give thispower to these courts.”7

B. Plain Meaning and the Rule ofthe Specific - When a statute providesa clear mandate, courts areconstitutionally required to complywith the plain meaning of the law. 8

Criminal proceedings in municipal andjustice courts must be conducted incompliance with Chapter 45 of theCode of Criminal Procedure.9 Only if


Chapter 45 does not provide a rule ofprocedure may a judge apply a generalrule provided elsewhere in the Code ofCriminal Procedure. Because deferreddisposition is specifically contained inChapter 45, judges are consequentiallyprohibited from utilizing the deferredadjudication provisions of Chapter 42,regardless of whether the municipalcourt is a court of record. Thecorollary is also true. Neither a countynor a district court may utilize deferreddisposition in adjudicating fine-onlyoffenses.10

II. Notable Structural Differences –For some readers, merely knowing thatthe law prohibits municipal courtsfrom using deferred adjudication maysufficiently delineate the two laws.However, short of their similarfunctions, they are distinctly different.Consider the following:

A. Brevity – Many people whoerroneously use the term “deferredadjudication” have likely never readArticle 42.12. When you put the twostatutes side by side, it is really hard toconfuse the two distinct laws. The lean,user-friendly, deferred disposition isone page in length and contains exactly395 words. In contrast, its beleagueredcousin, deferred adjudication is 32pages long and contains exactly 16,691words. Comparing deferred dispositionto deferred adjudication is tantamountto comparing a family outing ofminiature golf to 18 holes of golf atAugusta against Tiger Woods. Thedifferences in structure are soremarkable that they have been thesubjects of an Attorney GeneralOpinion.11

B. Disposition vs. Adjudication –The distinction between “disposition”and “adjudication” is a likely culprit forconfusion. Deferred dispositiondenotes that on a plea of guilty or nolocontendere the court delays furtherproceedings without entering ajudgment.12 Deferred adjudication, onthe other hand, denotes that after

conviction or upon a plea of guilty ornolo contendere the court suspends theimposition of the sentence(subsequent to making certainfindings).13 Unlike deferreddisposition, in deferred adjudicationthere is a judgment, the court merelysuspends the sentence (i.e.,punishment). In contrast, withdeferred disposition, proceedings canbe delayed prior to judgment.14 It is forthis reason that deferred dispositionhas been characterized as a statutoryform of deferred prosecution.15 Notsurprisingly, even the most learnedlegal scholars or jurists could find thisdistinction perplexing. Such confusionis understandable. First, as drafted bythe Legislature, the terms“disposition” and “adjudication” havedebatably been interchanged.16 Thishas likely contributed to theinconsistent use of the terms in bothlegal literature and in case law.Secondly, especially in the context ofmunicipal and justice courts, there is along history of confusion in regard towhat constitutes the “sentence” andwhat constitutes the “judgment.”While the language of Article 42.01,Code of Criminal Procedure suggeststhat the “judgment” is the formaldetermination of guilt or innocenceand that the “sentence” is theconsequence or penalty derived fromthe finding of guilt in the judgment,case law has caused these terms tohave problematic application inmunicipal courts. In Ex parte Hayden,17

the Court of Criminal Appeals heldthat judgment and sentence are not thesame thing, though in a misdemeanorcase, a verdict of guilty is itself ajudgment of conviction and no formalsentence is required. Thirty years later,the dissent in Ex parte Minjares18

claimed that the majority left theimpression that there was nodifference in the two terms. What thedissent in Minjares did not note,however, was that Hayden wasaddressing the concepts of judgment

and sentence in a different context(namely, whether non-courts of recordhad probation authority and whether afinal judgment was required). Minjares,in contrast, dealt with the issues of jailcredit and indigence. Thus, while thetwo terms are not synonymous,Chapter 45 of the Code of CriminalProcedure does little to delineate thetwo terms. In fact, in Article 45.041,Code of Criminal Procedure, theterms appear to be used collectively.

C. Community Supervision –“Deferred adjudication,” formerlycalled probation, is a type ofcommunity supervision.19 Communitysupervision entails probation officers.At its conception, there was noapparent need for individuals chargedwith fine-only offenses to be subject tocommunity supervision. Consequently,deferred disposition contains nosimilar provisions nor does it providerevocation procedures.20 Presumablythis is due to the assumption that indeferred disposition no one issupervising whether or not thedefendant is complying with courtimposed terms of probation. Thispresumption is questionable. Somecities, such as Fort Worth, have courtpersonnel that monitor compliancewith deferred disposition orders.Additionally, in 2001 the Legislaturepassed legislation authorizingmunicipal and justice courts to hirejuvenile case managers.21 Thus, inlimited instances, there appears to bean emerging trend comparable tocommunity supervision in Texas localtrial courts of limited jurisdiction.Despite similar functional equivalents,community supervision differentiatesdeferred adjudication from deferreddisposition.

D. Expunction – One final andimportant distinction betweendeferred disposition and deferredadjudication entails the possibility ofexpunging records. Records pertainingto a complaint dismissed upon


successful completion of deferreddisposition may be expunged underArticle 55.01, Code of CriminalProcedure.22 Article 55.01 requires adefendant in municipal court to file apetition in the district court in thecounty in which the defendant wasarrested.23 When a county or districtcourt, even in cases in which theoffense has been plea-bargained downto a Class C misdemeanor, imposesdeferred adjudication it is done sopursuant to the rules contained inArticle 42.12, Code of CriminalProcedure. Section 5 of Article 42.12specifically governs deferredadjudication in county and districtcourts, and nowhere in the section isthere a provision comparable to thatfound in Article 45.051(e).24 Thisdifference is logical and consistentwith the legislative scheme in Article55.01(a)(2)(B), which excludes casesfrom consideration for expunctionwhere community supervision isgranted. Simply stated, in contrast todeferred disposition, individuals incounty and district court receivingdeferred adjudication, regardless if it’sa Class C misdemeanor or a felony, arenot entitled to expunction.

Conclusion

Other differences exist (unlikedeferred disposition, deferredadjudication often entails a pre-sentence investigation; unlike deferredadjudication, juries do not have theoption of recommending deferreddisposition). Alas, despite theirsimilarities they are distinct. Granted,out of shear necessity municipalcourts may at times have to look tocase law to interpret deferredadjudication in construing deferreddisposition. Nevertheless, be careful tonot go too far in making comparisons.The laws are simply different.Accordingly, beginning with calling theterms by their respective names, suchdifferences should be acknowledged.Just think, by abandoning the incorrect

use of the term “deferredadjudication,” we may collectively alsoend the use of the fictional yet highlyhumorous term “deferredadjudification.” Then and only then, asa result of such a collective effort inmunicipal courts, will those whocringe upon hearing the improper useof both two terms cringe no more.

________________1 Article 42.12, Code of CriminalProcedure.2 Article 45.051, Code of CriminalProcedure.3 Texas history is filled with instanceswhere a single word (or in one famousinstance a semicolon) was the determiningfactor in a legal action. Ex parte Rodriquez,39 Tex. 705 (1873), the infamoussemicolon decision by the Supreme Courtof Texas that invalidated a statewideelection during the reconstruction era.“The Semicolon Court of Texas,” GeorgeE. Shelley, The Southwestern HistoricalQuarterly, Vol. XLVIII, No. 4, April, 1945.4 State v. Hardy, 963 S.W.2d 516(Tex.Crim.App. 1997).5 Thomas E. Baker, Charles P. Bubany,“Probation for Class C Misdemeanors: ToFine or Not to Fine is Now the Question”22 South Texas Law Journal 2 (1982).6 Acts 1981, 67th Legislature, Chapter 318,at 894.7 Senate Comm. on Jurisprudence, BillAnalysis for S.B. No. 914, 67th Leg.(1981).

The bill analysis and the title to the billindicate the Legislature’s understandingthat “justice” refers to a justice of thepeace and a municipal judge. TexasAttorney General Opinion JM-526 (1986).8 Ex parte Jones, 957 S.W.2d 849(Tex.Crim.App. 1997).9 Article 45.002, Code of CriminalProcedure.10 Carmona v. State, 1988 WL 71701 (Tex.App-Hous. (1 Dist.) – 1988).11 In Texas Attorney General Opinion JM-307(1985), it was noted that deferreddisposition, in contrast to deferredadjudication, includes no purpose clause

or any other provision stating the goals ofits procedures for suspending sentences.12 Article 45.051(a), Code of CriminalProcedure.13 Article 42.12(a), Code of CriminalProcedure.14 Alternatively, deferred disposition mayalso be imposed upon finding of guilt of afine-only offense. Article 45.051(a), Codeof Criminal Procedure.15 Senate Comm. on Jurisprudence, BillAnalysis for S.B. No. 914, 67th Leg. (1981);Texas Attorney General Opinion JM-526(1986).16 Black’s Law Dictionary (6th Edition) statesthat in the context of criminal law,“disposition” denotes the sentencing orother final settlement of a criminal case.“Adjudication” on the other hand denotesthe formal pronouncement of a judgment.17 215 S.W.2d 620 (Tex.Crim.App. 1948).18 582 S.W.2d 105 (Tex.Crim.App. 1978).19 Davis v. State, 968 S.W.2d 368(Tex.Crim.App. 1998).20 In fact, Article 45.051, Code of CriminalProcedure, only expressly addresses courtaction “at the conclusion of the deferralperiod.”21 Article 45.054, Code of CriminalProcedure.22 Article 45.051(c), Code of CriminalProcedure.23 Texas Attorney General Opinion JM-912(1988). The exception being where specificexpunction provisions are contained inChapter 45 of the Code of CriminalProcedure. Such expunction provisionsfor certain offenses were added toChapter 45 by the Legislature in 2001.24 Pickett v. State, WL 202466 (Tex. App-Dallas 2002) (unpublished opinion).

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RESOURCES FOR YOUR COURT

MediatorsAchieving

PeaceState Bar Program for

Middle School StudentsMediators Achieving Peace (MAP) is aState Bar of Texas program that trainsvolunteer attorneys to teach selectedmiddle school students how tomediate; these students in turn becomethe mediators for their fellow students’disputes. Municipal judges, clerks andprosecutors might considerrecommending the program to theirlocal schools and bar associations.

How does Mediators AchievingPeace or MAP work?

Lawyers who sign up get a two-and-a-half-hour video and a thick notebookthat has all the information they needto teach a selected group of 10 to 15middle school students how tomediate. Once the students are trained,they are asked by counselors, theprincipal, or the students to mediatestudent disputes. The mediation isdone in private with just the twodisputing parties and the one or twostudent mediators present.

Who selects at which school I wouldteach?

Jan Miller, Director of the State BarLaw-Related Education Department(512/463-1463), encourages lawyers toapproach a school — perhaps theirchild’s middle school, or the middleschool they attended — and see if theschool is interested. Miller has a flyer

that can be given to the principal orcounselor describing the MAPprogram.

Who selects the students who willbe the mediators?

The school selects the students, whoideally will be from different interestgroups. They will not necessarily bethe most popular, nor will they be thePollyannas, but represent a diverseethnic, gender, and racial mix.

How many students are in a MAPclass?

It can vary from 10 to 15. The groupshould be small enough so that eachstudent mediator will have a chance tomediate at least a couple of times amonth. Meetings should be scheduledonce a week for an hour for six toeight weeks. The time depends on theschool and attorney.

Specifically, what is taught in theclasses?

The lawyer and students discuss whatis conflict, how to listen, theimportance of neutrality, the role ofthe mediator, ground rules and stepsof mediation, brainstorming solutions,the importance of confidentiality, andhow to come to an agreement. How todiscuss this information with studentsis clearly laid out in the manual and inthe video.

Does this program really work?

In Austin at Mendez Middle School,counselor Nancy Lewis said themediations have better than a 90percent success rate, in that they reachan agreement that both disputingparties sign. Another counselor,Imelda Acosta, said that more than 95

percent of the agreements stick.“Students have a hand in creating thesolution and so they buy into it,” saidAcosta. “Also, most of the studentshave never signed a contract before;they take this very seriously.” MichaelWatkins, an eighth-grade mediator atMendez, explained, “Studentmediations work better because kidsdon’t always listen to the principalabout how to solve their problems.The principal and counselors don’tunderstand our problems as well askids do. Kids will listen to other kids.”

What if the students cannot reach asolution or an agreement?

The students in the dispute alwayshave the option of going to thecounselor, principal, or other schooladministrator to solve theirdifferences. Most students, however,would rather not face a principal. Alsomost disputes are the “she said/hesaid” variety where students just wantto be heard and want the problem toend without losing face. Mediationoffers a solution.

What if the problem is serious,perhaps involving guns or drugs?

Most schools have a policy that if adispute involves guns, drugs, or evengangs, the police are called. It is up tothe school to define the type ofproblems they will allow students tomediate. The school administrationdecides whether to allow students tomediate student-teacher disputesor parent-childdisputes.


Why Involve Local Attorneys andthe Bar Association?

The program was developed under theleadership of Austin attorney BroadusSpivey who was President of the StateBar of Texas in 2001-2002. “This isthe kind of work lawyers should bedoing in their communities,” saidSpivey. “People look to lawyers forconflict resolution and we ought to betraining our young people to haveskills that can serve them throughouttheir lives.

Free Codebooks!To any municipal court judge, clerk, prosecutor, or bailiff/warrant officer thatcompletes the online newsletter survey, TMCEC will mail at no charge onecomplimentary copy of the Texas Criminal and Motor Vehicle Handbook (a Gouldpublication valued at $16). Supplies are limited so log onto the TMCEC web siteASAP: www.tmcec.com/newsletter/evaluation.

ExpunctionForms

The TMCEC 2001 Forms Bookhas several expunction forms thatmay be useful to courts:

Official Notice of Expunction Rights:Penal Offenses

Admonishment for Expunction onAcquittal (Chapter 55, CCP)

Application for Expunction

Notice to State of Expunction

Order for Expunction (Chapter 55,CCP)

Failure to Attend School Notice ofExpunction Rights

Order for Expungement of Records(Sec. 106.12, ABC)

All Texas municipal courtsreceived a copy of the TMCEC2001 Forms Book in November2001. A limited number ofcopies are still available fromTMCEC at no charge. Call 800/252-3718 if you are unable tolocate your court’s copy. Thematerial is also available on CD-ROM or 3.5” diskette form, or itcan be accessed on the TMCECweb site [http://www.tmcec.com/forms.html. The 2001 FormsBook will be update in November2003 after the 78th LegislativeSession.

“It seems to me that teaching students how to resolvetheir differences peacefully and within establishedparameters might prevent some of the horrific acts ofviolence we have watched students across this countryperpetrate on their schools.” -- Spivey.

Mark Your Calendar!

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The National Center for State Courts(NCSC) has announced three Fallprograms.

Advanced Case Flow ManagementOctober 9-11, 2002Denver, Colorado

E-Court 2002 ConferenceDecember 2-4, 2002Las Vegas, Nevada

The Mediators Achieving Peace TrainingManual can be downloaded from theState Bar’s web site atwww.texasbar.com/MAP/MAP.asp

For more information, and to registerand get involved in MAP, contact JanMiller at (800) 204-2222 or (512) 463-1463, ext. 2120.

Article adapted from article from theweb site of the State Bar of Texas thatwas written by Anita Davis.

8th BiannualCourt Technology ConferenceOctober 28-30, 2003

Call the registrar at 800/616-6206 formore information or to order acomplete course catalog, or write:

NCSC300 Newport AvenueWilliamsburg, Virginia 23185


2nd Annual Juvenile Law SpecializationIntensive Review Course

Sponsored by the Texas Juvenile Probation Commission and Juvenile Law SectionSeptember 9-10, 2002

Renaissance Hotel - Austin, TexasWHO SHOULD ATTENDThis course is an intensive two-day program designed specifically for attorneys who will be taking the Juvenile Law LegalSpecialization exam in October 2002 or who are potential candidates to take the written exam in the future. The course isalso intended to assist juvenile justice practitioners with the basic fundamentals and principles of juvenile law. Preferencewill be given to those individuals who have currently applied for Specialization through the Texas Board of LegalSpecialization and State Bar of Texas.

SUPPLEMENTAL TRAINING MATERIALSTraining materials will be provided at the conference. It is suggested however that you bring your Texas Juvenile Law 5thEdition and Supplement for reference throughout the course. This reference material will be available for purchase at thecourse. The price of the two-volume set (including Volume 1, Volume 2, and the 2001 Supplement) is $35. Volume 1 sellsfor $25, Volume 2 for $10, and the 2001 Supplement for $15. Please bring a check made payable to the Texas JuvenileProbation Commission - no cash will be accepted. You may also download an order form off of the TJPC website atwww.tjpc.state.tx.us.

REGISTRATIONSpace is limited so you are encouraged to pre-register for this course. Registration fees are $100 if you are a juvenile lawsection member, judge, associate judge, referee or master. Registration fees for non-section members are $125.

PAYMENTMethod of payment shall be check or money order made payable to the Texas Juvenile Probation Commission. Nopurchase orders, cash, or credit cards will be accepted. Please mail your registration form along with payment in full to:Texas Juvenile Probation Commission, c/o Kristy Carr, P.O. Box 13547, Austin, TX 78711. On your check or moneyorder, please indicate this is for Event Number TJPC-02-003. No confirmation will be sent. Please pick up your name tagand course materials at the program.

TRAINING INFORMATION & ACCOMMODATIONSThe training will be held at the Renaissance Hotel in Austin. A limited number of hotel rooms were blocked at adiscounted rate of $80/single and $140/double. When making accommodations, please contact the hotel directly andspecify that you are with the Texas Juvenile Probation Commission. The Renaissance Hotel is located at 9721 RenaissanceBlvd., Austin, Texas and can be contacted at 512/343-2626 or online at www.renaissancehotels.com.

PARTICIPANTS MAKING FLIGHT ARRANGEMENTSFor those of you who may be making flight arrangements for the second day, please be aware of the traffic. On a Tuesdayafternoon, it will take approximately 45 minutes to get to the airport from the hotel in traffic. Please make yourarrangements accordingly. Super Shuttle is available to and from the airport at a rate of $15 per person per trip and may becontacted at 512/385-9100.

ACCREDITATIONThis activity has been submitted to the MCLE Committee of the State Bar of Texas and should be accredited for CLE andJudiciary credit for a total of 11.25 hours; and juvenile probation officers will receive 11.25 hours from the Texas JuvenileProbation Commission. For those individuals attempting to complete the required 60 hours of training for theSpecialization exam, you may use hours received from this course.

ADDITIONAL INFORMATIONPlease visit the TJPC website at www.tjpc.state.tx.us or for additional information, you may contact Kristy Carr at 512/424-6710. For more information regarding the Juvenile Law Specialization Exam, please visit the Texas Board of LegalSpecialization’s website at www.tbls.org.


Jo Dale BeardenTMCEC Program Coordinator

Improving the Odds of Success

TECH

CORNER

Throughout the year, Tech Cornerarticles have discussed and describedcourt technologies. As jovial as theTech Corner has been, when it isestimated that more than 60 percentof government technology projectsfail (Gartner, Inc.), an end of the yeararticle with more rhetoric about howtechnology can improve the day-to-dayfunctions of the court seems trivial.Instead, a discussion of whytechnology projects typically go wrongand some tips to increase the odds ofsuccess for your court seem moreappropriate.

According to Christopher Crawford’sarticle, Technology Projects – What GoesWrong and Lessons Learned, most courttechnology projects fail because theydo not have one or more of thefollowing: top managementcommitment, adequate userinvolvement, experienced projectmanagement, clear business objectives,minimized scope, firm basicrequirements, formal methodology,reliable estimates, or other criteria(small milestones, proper planning,etc.). He states that studies of publicand private information technology(IT) projects show that “over 31percent of projects are canceled beforecompletion, more than half of theprojects cost 189 percent of theoriginal estimate while containing only42 percent of the proposed features.”

Of course just knowing that there is achance your project may fail, or evenfalter is not helpful. In general, therehas been little research done in thisarea, the few technology projectstudies that have been done focus

more on software development thanon implementation of technologies.Technology Projects – What Goes Wrongand Lessons Learned took the studiesavailable and developed a fewquestions to ask which, if answeredhonestly, may increase the technologyprojects odds for success. Thequestions are based on six of the 10reasons that technology projects fail.Below are five reasons for failure mostrelevant to court technology projects.

Lack of Top ManagementCommitment

• Is this technology necessary forcourt operations? If so, the projectwill fail without commitment fromtop management. If not, don’t investthe time or the money.

• Will internal politics determine thecomposition of the project team?The choice of project teammembers may give unspoken cluesabout top managementcommitment.

• Are critical tasks out of the projectteam’s control? If so, againintervention will be needed orproject will fail.

Inadequate User Involvement

• Will this be the first end userexperience with this technology? Ifso, involve the staff completely sothat they will know what to expectwhen the new system isimplemented.

• How severely will end userprocedures change? This should belooked at as a direct correlation --the more to be changed, the morestaff involvement needed.

• What can we stop doing as a resultof this new system? The staffshould have input on ways tostreamline the project, doing so willdelete duplicated effort.

Unclear Statement ofRequirements

• Will the new system depend onother systems? This is important,even at the bidding process, becausethe systems are going to need to talkto each other. Make sure that thevendors and the equipment arecompatible.

• Has process reengineering beendone before the system requirementsare completed, and is the processcorrect? In automating procedures,streamline those procedures prior toautomation instead of afterwards.Doing so will cut down on changesthat may need to be made post-project completion.

• Does this system feed informationto or from other agencies? If youare sharing information with otheragencies, or sending other agenciesinformation from the new system,make sure that the formats areexchangeable.

• After the court determines that thecurrent processes are correct, hasthe court determined how theprocesses will be streamlined and ifthe new electronic process will becorrect? This will help the courtestablish needed requirements forthe new system.

• Before determining the systemrequirements, has the courtdeveloped a flowchart of court

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Academic ScheduleWatch your mail for the TMCEC FY 03 Academic Schedule! It will contain an outline of all of the 12- and 32-hourprograms, as well as descriptions of the programs, the procedures on registering, and a summary of the judicial educationrequirements. It may also be accessed via the web site: www.tmcec.com.

SEMINAR DATES

September 23-27, 2002

October 14-15, 2002

October 16-17, 2002

October 31-November 1, 2002

November 13-14, 2002

December 3-4, 2002

December 3-4, 2002

December 9-13, 2002

January 7-8, 2003

January 23-24, 2003

February 7-9, 2003

February 20-21, 2003

March 3-4, 2003

March 18-19, 2003

March 18-19, 2003

March 27-28, 2003

April 10-11, 2003

May 1-2, 2003

May 5-6, 2003

May 7-8, 2003

May 20-22, 2003

May 21-22, 2003

June 5-6, 2003

June 17-18, 2003

June 17-18, 2003

June 17-18, 2003

July 21-25, 2003

August 4, 2003

August 8, 2003

SEMINAR

32-Hour New Clerks

12-Hour Clerks

12-Hour Judges

12-Hour Judges/Clerks

12-Hour Low Volume Judges/Clerks

12-Hour Bailiffs/Warrant Officers

12-Hour Prosecutors

32-Hour New Judges/New Clerks



24- Hour Assessment Clinic (Clerks)



12-Hour Bailiffs/Warrant Officers

12-Hour Court Administrators



12-Hour Clerks

12-Hour Attorney Judges

12-Hour Non-Attorney Judges

24-Hour Assessment Clinic (Clerks)

12-Hour Judges Special Topic: Evidence


12-Hour Court Administrators

12-Hour Judges Special Topic: Juvenile

12-Hour Prosecutors

32-Hour New Judges/Clerks

Legislative Update

Legislative Update

LOCATION

Austin

Tyler

Tyler

Austin

McAllen

Austin

Austin

Austin

Waco

San Antonio

Montgomery

Houston

Dallas

Arlington

Arlington

Abilene

Lubbock

South Padre Island

South Padre Island

South Padre Island

Austin

Austin

Midland

Corpus Christi

Corpus Christi

Corpus Christi

Austin

Houston

Austin

FROM THE CENTER


A Basic 32-HourCourt Support Personnel Seminar

September 23-27, 2002Only new court clerks or court clerks who have never attended a TMCEC seminar are eligible to attend this program.

The program offers the following topics: Role of the Clerk, Ethics, Complaints and Docketing, Trial Processes, Appeals, Failure toAppear and Warrants, Juveniles, Non-contested Cases, Records Management, Financial Management, DSC and Deferred, Court Costs,and State Reports.

Many cities are unaware that municipal court clerks are court officers and must observe thesame standards of fidelity and diligence that the Code of Judicial Conduct requires of a judge.Since the clerk’s actions can and do bear directly on proper court operations, court clerks shouldunderstand the differences between judicial and ministerial duties. If a clerk oversteps thebounds of his or her authority, the clerk, judge, and city may be subject to liability.

This program will help clerks perform their jobs properly and more effectively and accurately.

Sponsored by: Texas Municipal Courts Association and Texas Municipal Courts EducationCenter

Registration Information

SEMINAR: Conducted at the Holiday Inn Northwest Arboretum located at 8901 Business Park Drive, Austin (512/343-0888). It begins Monday, September 23 and concludes Friday, September 27. Registration begins on Monday at10:00 a.m. Class begins at 1:00 p.m. on Monday and concludes on Friday at 12:00 p.m.

HOTEL REGISTRATION: The Center makes all hotel reservations from the information that you provide on yourseminar registration form. The Center pays the entire cost of the room. You are responsible for your incidentals (tele-phone calls, rooms service, movies, etc.) You must live at least 30 miles from the seminar site to request a room.

MEALS: While you are attending the seminar, the Center provides some of your meals. On Tuesday, Wednesday, andThursday, breakfast and lunch are provided. On Friday, only breakfast is provided. Guests are not allowed to joinseminar participants at TMCEC-sponsored meals or sessions.

CANCELLATION POLICY: You must cancel at least five working days before the seminar starts. If you don’t, youwill be billed for the first night’s lodging costs, meal expense and course material ($120). Cancel by calling the Center.

TO REGISTER: Mail or fax registration form to TMCEC to 1609 Shoal Creek Blvd., Suite 302, Austin, 78701.Fax: 512/435-6118.

procedures? A flowchart will helpthe court determine if it has missedany steps in the process.

• When determining new systemrequirements, was the courtresearched applicable statutesregarding procedures? Doing thiswill help ensure that the court isproperly stating requirements.

• Before determining systemrequirements, has the court decided

which reports are required by statelaw and which reports are needed tooversee case flow management? Ifnot, you might not be able togenerate needed reports.

Staff Resources

• Is the court staff computer literate?If not, train staff early in the projectso that they can contribute in theplanning stages, not a week beforeimplementation.

• What has been done about routinework demands? When staff is

working on technology project,whether as a part of the planningteam or in training on the newtechnology, discuss earlyexpectations of routine duties andhow they are to be completed.

• Are internal IT staff resourcesadequate to the demands? If aproject is out of the court’s league,are there city IT staff to assist orshould the court contract a projectmanager?

Improving continued from page 19

Improving continued on page 24


Free TexasUniform Jury Handbook

TMCEC is making available at no charge, laminatedcopies of the Texas Uniform Jury Handbook in sets of50. Section 23.302 of the Government Coderequires clerks to provide a jury handbook to eachjuror who is required to read it before jury servicebegins.

Number of copies requested: ___________________________________

Name: _____________________________________________________

Court: ______________________________________________________

Mailing Address: ______________________________________________

____________________________________________________________

Return order form to TMCEC, 1609 Shoal Creek Boulevard, Suite 302,Austin, Texas 78701 or fax back to 512/435-6118.

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

Technology is exciting and can be verybeneficial to courts. But, as mostcourts are working on a limitedbudget, under strict scrutiny, and withno IT guidance every trick of the tradeis helpful. It is essential that judgesand clerks work collaboratively on ITprojects so that the needs of all aremet.

As a final suggestion, visit othercourts, do some benchmarkingspecifically related to the technologyproject you are interested inimplementing. Only through properplanning will a court truly decrease theodds of failure.

Resources:

Crawford, Christopher. TechnologyProjects – What Goes Wrong and LessonsLearned. The Forum on theAdvancement of Court Technology,http://fact.ncsc.dni.us

Gartner, Inc. http://insight.Gartner.com

Improving continued from page 21

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