ethics of cdl masking contemplating contempt

VVVVVolume 15olume 15olume 15olume 15olume 15 AUGUST 2006AUGUST 2006AUGUST 2006AUGUST 2006AUGUST 2006 No. 4 No. 4 No. 4 No. 4 No. 4©2006 Texas Municipal Courts Education Center, Austin. Funded by a grant from the Court of Criminal Appeals.

Statutorily, the contempt power of allcourts in Texas grants them authorityover those powers necessary tocontrol proceedings and to ensure thatthey are conducted with dignity in anorderly and expeditious manner.1 Toensure enforcement of those duties,the court may utilize its authority tohold a violator in contempt of court.The general contempt provisions arecodified under Section 21.002 of theTexas Government Code.2

There are two general types ofcontempt: civil, or coercive contemptused to compel a specific object fromthe contemnor, and criminal orpunative contempt. Criminal contempt

Ethics of CDL Maskingby John Vasquez, Municipal Judge, Austin

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I N S I D E T H I S I S S U E

LCI Rule Division ...................................9Ethics Opinons 291 and 292 .................10

ColumnsAcademic Schedule ..............................15Around the State .................................. 2Clerks Corner ...................................... 17Court Technology ............................... 18From the Center ................................. 11From the General Counsel .................. 3Registration Form ..............................16Traffic Safety ........................................19

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Effective September 1, 2003, holdersof a Commercial Driver’s License(CDL) are no longer eligible fordeferral of moving violations bycompletion of a Driver’s SafetyCourse (DSC) or deferred disposition.Ineligibility for deferral of trafficoffenses could be devastating to theholder of a CDL.

In 1999, Congress created a newfederal agency to improve commercialvehicle safety, the Federal MotorCarrier Administration (FMCSA). Inauthorizing the creation of the

FMCSA, Congress found that the rate,number and severity of crashesinvolving commercial motor carrierswas not acceptable.1

The FMCSA tightens laws controllingthe drivers of commercial motorvehicles. One provision of the MCSAprohibits the states from masking ordeferring traffic violations of CDLholders.2 The Congressional Recordclearly expresses Congress’ intent torequire every state to maintain a

Contemplating ContemptMunicipal Court’s General Authority to Impose Criminal Contempt Sanctions

by Lois Wright, TMCEC Program Attorney

may be further classified into twodistinct types: direct and constructive.Direct contempt involves disobedienceor disrespect of the court’s authorityand is committed in the presence ofthe court.3 Constructive contemptrequires testimony or evidence toestablish its existance, since it occursoutside the presence of the court.4 Thefailure to comply with a valid courtorder would most often be classifiedas constructive contempt.

An Expansive Discovery

Last month, the TMCEC staffstumbled upon one of those hiddengems that it had never before

contemplated. Section 21.002(h), TexasGovernment Code, limits the court’sability to confine a contemnor“notwithstanding any other law” to nomore than 18 months in jail, quite anexpansion of municipal and justicecourts’ original authority.

Specifically, the statute contemplatesthat contempt power is limited to:

1. 18 months, including three or moreperiods of confinement forcontempt arising out of the samematter that equal a cumulative totalof 18 months, if the confinementis for criminal contempt; or

2. The lesser of 18 months or the

Municipal Court Recorder August 2006

Texas Municipal CourtsEducation Center

1609 Shoal Creek Boulevard, Suite 302Austin, Texas 78701

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

Website: www.tmcec.com

Fair and Impartial Justice for All

FY06TMCA/TMCEC Officers

President: Steven Williamson, Fort WorthPresident-Elect: Robin Ramsay, Denton1st V.P.: Robert Doty, Lubbock2nd V.P.: Brian Holman, LewisvilleSecretary: Leisa Hardin, CrowleyTreasurer: Robert Richter, Missouri CityPast-President: Dan Francis, Robinson

DirectorsGary Ellsworth, Spearman • Ninfa Mares,Fort Worth • C. Victor Lander, Dallas •Lowell Thompson, Corsicana • GeorgeBill Robinson, Yorktown • Denn Whalen,Odessa • Julian E. Weisler, II, Brenham •Walter Dick Kettler, Beverly Hills • DonnaStarkey, Alvin • Lester Rorick, Pasadena

Staff• Hope Lochridge, Executive Director• Ryan Kellus Turner, General Counsel• Margaret Robbins, Program Director• Meichihko Proctor, Program Attorney &

Deputy Counsel• Lois Wright, Program Attorney• Patricia Russo, Program Assistant II• Margaret Danforth, Admin. Director• Rey Guzman, Multimedia Specialist• Carrie Harper, Registration Coordinator• Noel Wells, Administrative Assistant

Published by the Texas Municipal CourtsEducation Center through a grant from theTexas Court of Criminal Appeals. Subscrip-tions are free to all municipal judges, clerks,prosecutors, and support personnel em-ployed by the municipal court. Others maypurchase an annual subscription for $50.

Articles and items of interest not otherwisecopyrighted may be reprinted with attributionas follows: “Reprinted from the MunicipalCourt Recorder with permission from theTexas Municipal Courts Education Center.”

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

AROUND THE STATE

New TMCA/TMCEC OfficersAnnounced

At the July 22, 2006 meeting of the Board of the Texas Municipal CourtsAssociation, the election results of the TMCA officers and directors were ratifiedand announced for FY07. The new terms for the officers and directors beginSeptember 1, 2006.

President - Judge Robin A. Ramsay (Denton)

The following statewide officers were elected:

President-Elect - Judge Brian Holman (Lewisville)

First Vice President - Judge Robert Doty (Lubbock)

Second Vice President - Judge Ninfa Mares (Fort Worth)

Secretary - Ms. Leisa Hardin (Crowley)

Treasurer - Judge Robert C. Richter (Missouri City)

The following even-numbered regions elected a member from that specificregion to represent that region on the Board of Directors for a two-year term:

Region 2 - Judge Stewart Milner (Arlington)

Region 4 - Judge Elaine Coffman (Athens)

Region 6 - Judge Walter Dick Kettler (Beverly Hills)

Region 8 - Judge Donna Starkey (Alvin)

Region 10 - Judge Steven Kidder (Victoria)

The TMCEC staff wishes to thank the following persons for their conscientiouswork on the Board in recent years. Each individual brought a unique perspectiveto the board meetings, and their judgment, temperament and enthusiasm wereof great value to the board and TMCEC staff.

Judge Dan Francis (Robinson) - President (FY04-05), Past President (05-06),President Elect (03-04), and Region Director from (1999-2003).

Judge George Bill Robinson (Yorktown) - Region 10 Director (2002-2006).

August 2006 Municipal Court Recorder

FROM THE GENERAL COUNSEL Ryan Kellus Turner

In terms of the legal staff, 2006 hastruly been a year of change andtransition at TMCEC. While webegan January short-handed, three-quarters into the year, the “lawdepartment” is now fully staffed. Infact, we are “new and improved.”For the first time in the organization’shistory, the Center has three full-timeattorneys.

Last year, the TMCEC Board ofDirectors and the Texas Court ofCriminal Appeals approved theconversion of an existing position(responsible for coordinating thebailiffs/warrant officers program)into a new program attorney position.Last year, the Center received 15,000legal calls on the 800-line. Thatnumber has proportionally increasedwith the number of municipal judges,municipal courts and court personnel.The staff that responded to calls onthe 800-line (that would be MargaretRobbins and me) welcomed theaddition of a new staff attorney.

Lois Wright was hired in April to fillthis position. Right out of law school(she graduated from the University ofTexas last December), and on theheels of the bar exam (she found outshe passed while we were at theSouth Padre Island schools), we spentthe greater part of this summersubmerging Lois in all things criminallaw and municipal court. Notably,Lois was so eager to get into thework force that she finished both herundergraduate and legal education inFIVE years.

The Calvary Has Arrived!

During a time in which ourorganization’s energy reserve has beenon the wane, Lois has been a realboost. She is energetic, charming andan absolute joy. She is a great writerand has some wonderful ideas fornew projects that will, no doubt, beof benefit to you.

As excited as we were about fillingthe “new attorney” slot, sinceDecember when Tiffany Dowling leftthe organization to join the TravisCounty Attorney’s Office, theProgram Attorney/Deputy Counselposition had yet to be filled. This isthe position that I held prior tobecoming General Counsel. Jobduties include coordinating the judicialeducation program. Though it tookeight months to find the right person,we are excited to welcomeMeichihko Proctor to the team.

Meichihko brings a wealth ofeducation and experience to theCenter. Prior to attending law school,while earning her Master’s degree atTexas Tech, she worked for the Cityof Lubbock as special aide andspeechwriter. (Side note: In highschool, Meichihko was the 5A UILChampion in Persuasive Speaking.)After earning her law degree from St.Mary’s University, she worked for theTexas Municipal League while waitingfor her bar results. She has prosecutedin Tom Green County and for theCity of Plano. She comes to us fromthe Austin law firm of Bickerstaff,Heath, Pollan, & Carroom where shepracticed municipal law.

Meichihko is no stranger to municipalcourt or to municipal government.Nor is she a stranger to theclassroom. While in Plano she taughtas an adjunct professor at ColinCounty Community College. This fallshe will be teaching as an adjunct atHuston-Tillotson University here inAustin.

TMCEC is fortunate to have thetalents of these attorneys. Theirenergy and presence brings a muchneeded element to the work at hand.When you get a chance, pleasewelcome them. (For fun, we hadthem write each other’s biographicalstatements contained on the backpage).

We appreciate all of the individualswho expressed interest in thepositions. There were a lot ofapplicants. A special word of thanksto Judge Robin Ramsay of Dentonwho chaired the PersonnelCommittee and to all of its memberswho took the time to assist the Centerin conducting interviews andproviding feedback: Judge DanFrancis of Robinson, Ms. LeisaHardin, Court Administrator, City ofCrowley, Judge Dick Kettler, City ofBeverly Hills, Judge Phyllis Mathison,City of Bastrop, Ms. Luanne Petrash,Court Administrator, City ofWebster, Judge Robert Richter, Cityof Missouri City, and Judge DennWhalen, City of Odessa.


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period from the date ofconfinement to the date theperson complies with the courtorder that was the basis of thefinding of contempt, if theconfinement is for civil contempt.

The staff was puzzled by this 2003addition to the contempt statute andits apparent disregard for the justiceand municipal courts that wereoriginally limited in their contemptpowers to the three-day confinementand $100 fine. Our questions became:Was this statute intended to apply tomunicipal courts? More importantly:Does the statute apply to municipal courtsregardless of the legislative intent?

Intended Application toMunicipal Court

After consulting the SenateJurisprudence Committee hearingsconsidering this statutory proposal, itbecame apparent that the drafters ofthe statutory language had notconsidered the fact that 1) not allcourts had maximum contemptconfinement limits of six months,and 2) Section (h) as implementedtrumps all other laws governingcontempt limits in every court in theState.

The committee obviously intendedfor the amendment to be a safeguardon the contempt power, similar tothe limits imposed by the federalgovernment, so that contemnorscould no longer be incarceratedindefinitely. For district courts, countycourts and county courts at law,contempt power was formerlylimited to a fine of not more than$500 and confinement of not morethan six months. One committeespeaker specifically referred to thatsix-month limit as the “current law,”and explained that the bill wasintended to prevent the combination

of more than three of those six-month time periods as contemptsanctions. In listening to thecommittee hearings, one thing iscertain: municipal and justice courtswere never mentioned during thedrafting of this legislation.

Actual Application to MunicipalCourts

House Bill 346 passed, and becameeffective June 20, 2003. As read,Section (h) does not distinguishmunicipal or justice courts from theother courts, so according to theCode Construction Act, the statutewould apply to all courts. Moreover,since it was enacted more recentlythan conflicting statutes, Section (h)should be read to prevail over theinconsistent portions of formerstatutes.

In pertinent part, the language reads:“18 months, including three or moreperiods of confinement for contemptarising out of the same matter thatequal a cumulative total of 18months.” Let’s do some math. Threesix-month periods equal 18 months,just as 180 three-day periods couldequal 18 months. Certainly it mightsound unlikely that a court wouldhold someone in contempt for 180separate acts, but it also sounds likethe basis for some mouth-wateringmunicipal lore.

The clincher is the introductoryportion of Section (h):“Notwithstanding any other law…”.Notwithstanding used in drafting is acommon synonym for “despite” or“although,” and Bryan Garner’s ADictionary of Modern Legal Usage,2nd Edition, likens, notwithstanding anyother provision of law, to an ungainlyphrase used to override any arguablyinconsistent provisions. Considering aliteral interpretation of the statute,municipal courts are not only subjectto the limitations of this provision,

but they are bound to it over allother existing statutes.

So Should Municipal Courts UseTheir Section (h) Power?

On January 27, 2006, the Court ofAppeals in Waco court handed downGonzales v. State, an unpublisheddecision involving a defendant whoviolated a condition of her bond,prompting the district court judge tohold her in contempt.5 Specifically,Gonzales submitted diluted urinesamples to her probation departmentand lied about the conduct in opencourt. Although the judge wanted tohold Gonzales in contempt for theperjury, the appellate court held thatthe court was bound by the specificcontempt guidelines for her specificviolation of a condition of bond,codified in Article 7.18 of the Codeof Criminal Procedure. That statutelimits contempt in those cases to thestatutory maximums under 21.002(c),the general provision for municipaland justice courts: a $100 fine and athree-day confinement.6 Never isSection (h) even contemplated by thecourt to expand the jurisdiction ofthe district court.

Does Section 21.002(h), G.C.,expand your right as a municipaljudge to hold someone on multiplecounts of contempt for up to 18months? Technically, yes; but,considering the stakes, no one iseager to be the first to test it. Giventhe legislative intent, or morepractically, the legislative oversight,coupled with an absence of positivecase law on the issue, it would bebest to wait for clarification by caselaw or statutory amendment by theLegislature. Until then, rememberthat courts can’t go wrong followingmore readily tested methods toensure that court proceedings areconducted expeditiously, with dignityand order.


You can listen to and view the contentof this hearing and other archivedhearings at the Texas Senate website,www.senate.state.tx.us. The hearingherein referenced is located under theJurisprudence Committee, May 07,2003, at 42:52.________________1 Section 21.001(a) & (b), G.C.2 Section 21.002, G.C.3In re Johnson, 996 S.W.2d 430, 433 (Tex.App.—Beaumont 1999, no pet.).4Ex parte Daniels, 722 S.W.2d 707, 709 (Tex.Crim. App. 1987).5Gonzalez v. State, No. 10-05-00405-CR,(Tex. App.—Waco 2006).6 Article 7.18, C.C.P.

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complete driving record of all trafficviolations, including non-commercialvehicle violations committed by CDLholders.3

To enforce this requirement and othernew mandates, Congress authorizedthe FMCSA to withhold motor carrierassistance program funds from non-complying states.

Effective September 1, 2002, the U.S.Department of Transportation issuednew rules prohibiting states frommasking convictions of CDL holders:

§384.226 Prohibition on maskingconvictions.

The State must not mask, deferimposition of judgment, or allowan individual to enter into adiversion program that wouldprevent a CDL driver’sconviction for any violation, inany type of motor vehicle, of aState or local traffic control law(except a parking violation) fromappearing on the driver’s record,whether the driver was convictedfor an offense committed in theState where the driver is licensedin another State.4

In Texas, CDL holders becameineligible for mandatory DSC and thedeferral of traffic violations onSeptember 1, 2003. Consequently,municipal and justice court judgesmust now deal with CDL holderswho wish to continue theiremployment and support theirfamilies. Most likely, their only optionis to take the traffic violations to trial.

In some cases, judges are being askedto permit the circumvention of Texaslaw. Some of the more common waysto mask traffic charges against CDLholders include:

1. Changing the charge from amoving violation to a non-movingviolation;

2. Permitting the defendant to pay aFailure to Appear charge thendismissing the traffic violation; and

3. Dismissal of the traffic chargeupon the defendant making acontribution equal to the fineamount to the jurisdiction.

Notably, the Legislature has nowchanged the law to prevent CDLholders from temporarily droppingtheir CDL license in order to qualifyfor a deferred disposition.

Effective September 1, 2005, thestatus of the driver at the time of theissuance of the citation determineswhether the driver can qualify formandatory DSC or deferreddisposition.

Judges may be asked to grant leniencyto a CDL holder. You must be carefulin these circumstances not to approvethe circumvention of Texas law. Ifyou are asked to mask a trafficviolation charged against a CDLholder, consider your ethicalobligation. What might be theconsequences of masking a violation?

The Commercial Driver’s License

A working knowledge of CDLs andthe regulation of CDL holders is

essential to understanding the court’srole in a much larger federal landscape.

The purpose of the CommercialMotor Vehicle Act of 1986 was toimprove traffic safety by removingunsafe and unqualified commercialdrivers from the road. The licensingguidelines and standards issued by theU.S. Department of Transportationwere adopted by all the states by April1992. When the FMCSA of 1999passed the rules governing CDLholders, state laws were tightenedsubstantially.

In accordance with federal regulationsand federal law, Texas law nowestablishes three classes of CDLs:

(a) The department may issue a ClassA, Class B or Class C commercialdriver’s license.

(b) Class A covers a combination ofvehicles with a gross combinationweight rating of 26,001 pounds ormore, if the gross vehicle weightrating of the towed vehicle orvehicles exceeds 10,000 pounds.

(c) Class B covers:

(1) a single vehicle with a grossvehicle weight rating of26,001 pounds or more;

(2) a single vehicle with a grossvehicle weight rating of26,001 pounds or moretowing a vehicle with a grossvehicle weight rating of10,000 pounds or less; and

(3) a vehicle designed to transport24 passengers or more,including the driver.

(d) Class C covers a single vehicle orcombination of vehicles notdescribed by Subsection (b) or (c)that is:

(1) designed to transport 16-23passengers, including thedriver; or

(2) used in the transportation ofhazardous materials that


require the vehicle to beplacarded under 49 C.F.R.Part 172, Subpart F.

(e) The holder of a commercialdriver’s license may drive anyvehicle in the class for which thelicense is issued and lesser classesof vehicles except a motorcycleor moped. The holder may drivea motorcycle only if authorizationto drive a motorcycle is shown onthe commercial driver’s licenseand the requirements for issuanceof a motorcycle license have beenmet.5

As required by the FMCSA, Texas lawalso requires that CDL holders whodrive certain types of loads obtainspecial endorsements:

(a) The department may issue acommercial driver’s license withendorsements:

(1) authorizing the driving of avehicle transportinghazardous materials, subjectto the requirements of Title49 C.F.R. Part 1572;

(2) authorizing the towing of adouble or triple trailer or atrailer over a specified weight;

(3) authorizing the driving of avehicle carrying passengers;

(4) authorizing the driving of atank vehicle;

(5) representing a combinationof hazardous materials andtank vehicle endorsements; or

(6) authorizing the driving of aschool bus, as defined bySection 541.201.

(b) The holder of a commercialdriver’s license may not drive avehicle that requires anendorsement unless the properendorsement appears on thelicense.

(c) A person commits an offense if

the person violates Subsection(b). An offense under thissection is a Class Cmisdemeanor.6

Depending on the type ofviolations, CDL holders can bedisqualified from drivingcommercial motor vehicles forperiods of 60 days, 120 days, oneyear, three years, and life. TexasTransportation Code §522.081. ACDL holder who has as few as twoconvictions for “serious trafficviolations” can be suspended fromdriving commercial motor vehicles.Texas law defines “serious trafficviolations” as:

(A) a conviction arising from thedriving of a motor vehicle,other than a parking, vehicleweight, or vehicle defectviolation, for:

(i) excessive speeding, involvinga single charge of driving 15miles per hour or more abovethe posted speed limit;

(ii) reckless driving, as definedby state or local law;

(iii) a violation of a state or locallaw related to motor vehicletraffic control, including a lawregulating the operation ofvehicles on highways, arising inconnection with a fatal accident;

(iv) improper or erratic trafficlane change;

(v) following the vehicle aheadtoo closely; or

(vi) a violation of Sections522.011 or 522.042; or

(B) a violation of Section 522.015.7

CDL holders are also ineligible fordismissal of traffic offenses uponcompletion of a drivers safetycourse. Tex. Code of Crim. Proc.Art. 45.0511(s). Similarly, CDLholders are ineligible for suspension

of sentence and deferral of trafficoffenses.8

Accidents Involving CommercialMotor Vehicles

Of an estimated 231 million vehicleson U.S. roads in 2003, approximately8.7 million (3. 8%) of those vehicleswere large trucks and buses.According to available accident datathese large trucks and busses weremuch more likely to be involved incollisions than other vehicles.

Of 6,328,000 motor vehicle crashes,6.9% involved large trucks and buses.Of 38,252 fatal vehicle collisions,4,289 (11.2%) involved large trucksand buses. Therefore, large trucks andbuses were almost twice as likely tobe involved in a collision. Similarly,large trucks and buses were almostthree times more likely to be involvedin a fatal accident.

The Structure of JudicialDisciplinary Actions

Municipal judges are subject to theCode of Judicial Conduct with fewexceptions. Under the TexasConstitution, judges may bedisciplined for violation of the Code.

Any Justice or Judge of thecourts established by thisConstitution or created by theLegislature as provided inSection 1, Article V, of thisConstitution, may, subject to theother provisions hereof, beremoved from office for willfulor persistent violation of rulespromulgated by the SupremeCourt of Texas, incompetence inperforming the duties of theoffice, willful violation of theCode of Judicial Conduct, orwillful or persistent conduct thatis clearly inconsistent with theproper performance of hisduties or casts public discreditupon the judiciary oradministration of justice. Any


person holding such office maybe disciplined or censured, in lieuof removal from office, asprovided by this section. Anyperson holding an officespecified in this subsection maybe suspended from office withor without pay by theCommission immediately onbeing indicted by a State orFederal grand jury for a felonyoffense or charged with amisdemeanor involving officialmisconduct. On the filing of asworn complaint charging aperson holding such office withwillful or persistent violation ofrules promulgated by theSupreme Court of Texas,incompetence in performing theduties of the office, willfulviolation of the Code of JudicialConduct, or willful and persistentconduct that is clearly inconsistentwith the proper performance ofhis duties or casts public discrediton the judiciary or on theadministration of justice, theCommission, after giving theperson notice and an opportunityto appear and be heard beforethe Commission, mayrecommend to the SupremeCourt the suspension of suchperson from office. TheSupreme Court, after consideringthe record of such appearanceand the recommendation of theCommission, may suspend theperson from office with orwithout pay, pending finaldisposition of the charge.9

The Legislature has defined “willful orpersistent conduct that is clearlyinconsistent with the properperformance of a judges duties”broadly in statutory language creatingthe Judicial Conduct Commission:

(b) For purposes of Section 1-a,Article V, Texas Constitution,“wilful or persistent conduct thatis clearly inconsistent with the

proper performance of a judge’sduties” includes:

(1) wilful, persistent, andunjustifiable failure to timelyexecute the business of thecourt, considering the quantityand complexity of thebusiness;

(2) wilful violation of a provisionof the Texas penal statutes orthe Code of Judicial Conduct;

(3) persistent or wilful violationof the rules promulgated bythe supreme court;

(4) incompetence in theperformance of the duties ofthe office;

(5) failure to cooperate with thecommission; or

(6) violation of any provision ofa voluntary agreement toresign from judicial office inlieu of disciplinary action bythe commission.

(c) The definitions provided bySubsections (b) and (d) are notexclusive.

(d) For purposes of Subdivision (6),Section 1-a, Article V, TexasConstitution, a misdemeanorinvolving official misconductincludes a misdemeanor involvingan act relating to a judicial officeor a misdemeanor involving an actinvolving moral turpitude.10

On request of the Judicial ConductCommission, the Texas SupremeCourt may appoint a tribunal toreview the commissionsrecommendations. The tribunal holdsits responsibilities to a very highstandard:

In a civilized society, members ofthe judiciary are significant publicfigures whose authority necessarilyreaches all points within theirrespective jurisdictions, if notbeyond. Members of the judiciary

of the State of Texas, whether amunicipal judge in Fort Stockton,a justice of the peace in CameronCounty, the county court at lawjudge in Liberty County, a statedistrict judge in Ozona, a justiceon the Sixth Court of Appeals,Texarkana, or the Chief Justice ofthe Texas Supreme Court, allserve as the collective guidon ofthe banner representing fairnessand impartiality in our state. It isfor this reason, plus others, thatthe judiciary must nurture andmaintain respect for theirdecisions, as well as the judiciaryof the State of Texas as a whole.The Texas jurist must be held tothe highest standards of integrityand ethical conduct, much moreso than the standards to whichmembers of the executive andlegislative branches are heldaccountable. Consequently, theultimate standard for judicialconduct in the State of Texasmust be more than effortlessobedience to the law, but rather,must be conduct which constantlyreaffirms one’s fitness for thehigh responsibilities of judicialoffice and which continuouslymaintains, if not furthers, thebelief that an independentjudiciary exists to protect thecitizen from both governmentoverreaching and individual self-help.11

The standard of conduct does notvary based upon whether or not thejudge was a lawyer, appointed orelected:

Nothing in this case suggests thatrespondent, by virtue of herposition as an elected non-lawyerjustice of the peace, should notbe held to the same standard as alaw-trained or merit selectionjudge who committed the sameviolation. Her conduct did notviolate some technical provision


of the Code of Judicial Conduct.Basic instincts of fairness shouldhave alerted respondent that sheshould not use her position as amember of the judiciary toinfluence a judicial colleague’shandling of her friend’s orrelative’s cases.12

Further challenges to the canons asoverbroad and vague have beenunsuccessful:

Arguments in other jurisdictionsthat constitutional and statutoryprovisions for the discipline ofjudges were vague or overbroadhave been consistently rejected onthe ground that the Code ofJudicial Conduct furnishedsufficient specification of thejudicial conduct which warrantsdisciplinary action. (Citationomitted.) Statutes andconstitutional provisions whichdefine in similarly broad terms thegrounds for removal of judgesfrom office have been upheld inIn re Lowery S.W.2d (Tex.Rev. Trib. Feb. 13, 1998, pet.denied); Napolitano v. Ward, 317 F.Supp. 79 (N.D.Ill. 1970) (“forcause”); Keiser v. Bell, 332 F. Supp.608 (E.D.Pa. 1971); Halleck v.Berliner, 427 F. Supp. 1225 (D.D.C.1977); In re Nowell, 293 N.C. 235,237 S.E.2d 246 (1977); Nicholson v.Judicial Retirement and RemovalComm., 562 S.W.2d 306 (Ky. 1978);and In re Gillard, 271 N.W.2d 785(Minn. 1978).

In light of these decisions, we findno merit in Respondent’scontention that the standards hewas found to have violated areunconstitutionally vague. While theCanons challenged in this mattermay proscribe some speech andconduct which, for other personsin other circumstances, could notbe constitutionally proscribed,Respondent’s contention that they

are unconstitutionally overbroadmust be and is rejected.13

The Application of the JudicialCanons

There are no reported cases involvingthe discipline of judges for maskingtraffic violations of CDL holders.There are, however, reported casesinvolving judges accused ofimproperly dismissing tickets andchanging charges.

In Snow’s Case, 674 A.2d 573 (NewHampshire, 1996), the NewHampshire Supreme Court found thatthe judge had contacted a policeofficer who issued a speeding ticket tothe judge’s brother. The judge told thepolice officer who had issued theticket that he (the judge) was surprisedthat the officer had not recognized thejudge’s brother. The officer asked thejudge to have his brother come to thepolice station so they could take careof the ticket. When the judge’s brothercame to the station, the officerdestroyed all copies of the ticket.Based on these facts the committee onjudicial conduct found that the judgehad violated Canon 1, Canon 2A, andCanon 2B of the Code of JudicialConduct.

The New Hampshire Supreme Courtrejected the judge’s claim that hisactions did not rise to the level ofserious misconduct:

Judge Snow first directs ourattention to several judicialconduct cases from otherjurisdictions where the conductinvolved was “serious.” He cites,for example, Matter of Wait, 67N.Y.2d 15, 490 N.E.2d 502, 499N.Y.S.2d 635 (N.Y. 1986), in whichthe judge engaged in “affirmativebehavior” that supported thecourt’s finding a “serious”violation. In Matter of Wait theimplicated judge presided over sixcases involving close relatives, onseveral occasions reducing trafficcharges on his own motion. 490

N.E.2d at 502-03. The New YorkCourt of Appeals concluded thatthis was “serious misconduct”which created the appearance ofimpropriety in violation of Canon2. 490 N.E.2d 502 at 503; seeMatter of Reedy, 64 N.Y.2d 299, 475N.E.2d 1262, 1263, 486 N.Y.S.2d722 (N.Y. 1985). Apparently,because the facts underlying theinstant case are clearly less“serious,” we are to conclude thatthey are not “serious.” We declineto do so. We conclude that JudgeSnow’s misconduct, constitutingviolations of several canons, was“serious.”

Judge Snow’s second basis forclaiming that his case should beresolved informally because he didnot engage in “serious”misconduct is that he did notintend to “fix” his brother’s ticket.There is no intent requirement inthese canons. Cf. Liljeberg v. HealthServices Acquisition Corp., 486 U.S.847, 859, 100 L. Ed. 2d 855, 108S. Ct. 2194 (1988) (scienter is notan element of a violation offederal rule governing recusalwhere impartiality mightreasonably be questioned). In fact,it is practically impossible toimpose a mens rea element on the“appearance of impropriety”standard in Canon 2. See Blaisdell v.City of Rochester, 135 N.H. 589,593, 609 A.2d 388, 390 (1992).“Whether an appearance ofimpropriety exists is determinedunder an objective standard, i.e.,would a reasonable person, notthe judge himself, question theimpartiality of the court.” Id.; seeUnited States v. Greenough, 782 F.2d1556, 1558 (11th Cir. 1986).Accordingly, “the subjective intentor motivation of the judge is not asignificant factor in assessing [thejudge’s] conduct . . . under thisstandard.” Adams v. Com’n on JudicialPerformance, 10 Cal. 4th 866, 897


P.2d 544, 548 (Cal. 1995)(analyzing standard of “bringingthe judicial office into disrepute”);see Wehringer’s Case, 130 N.H. at721, 547 A.2d at 260. We rejectJudge Snow’s argument that wedismiss the recommendation ofthe committee and order aninformal resolution.14

Judge Snow was publicly censured,suspended without pay for sixmonths, ordered to complete a judicialethics course and ordered toreimburse the judicial conductcommittee for its expenses.

The New York Court of Appealsconsidered the ethical consequences ofchanging the information on a trafficviolation from a moving violation to anon-moving violation. In re Conti,15

Judge Ernest Conti was charged withmisconduct in the disposition of twotickets. The tickets were dismissed byJudge Conti without first informingthe prosecutor as required by law. Inremoving Judge Conti from the benchthe Court noted:

We have previously held thatticket-fixing is such a seriousimpropriety that even a singleisolated incident can serve as abasis for removal (Matter of Reedy,64 NY2d 299), although there isno per se rule requiring removal inevery case (see, Matter of Edwards,67 NY2d 153, 155). Here, as thecredible evidence shows, petitionernot only “fixed” speeding ticketson two separate occasions, but healso compounded his offense byhis dishonesty in altering one ofthe tickets and then telling apatently false story when calledupon to explain his conduct to theCommission.16

The New York Court of Appealsconsidered a somewhat similarcircumstance when it decided In theMatter of Reedy, 475 N.E.2d 1262(Court of Appeals of New York,1985). Judge James Reedy’s son and

son’s friend were ticketed forspeeding in the village where JudgeReedy served as town justice. JudgeReedy contacted the judge of anadjoining town and asked him toaccept transfer of the cases. Thejudge of the neighboring villageagreed. When the judge of theneighboring village picked up thecitations, the offenses charged hadbeen changed from speeding toparking. The Court upheld theCommittee’s recommendation toremove Judge Reedy from the bench.

In each of the above cases the judgeswere disciplined for dismissing orchanging charges. While these casesdo not directly address masking oftraffic violations committed by CDLholders, they do provide insight intohow such conduct by a judge mightbe resolved.

Conclusion

Concern over road safety has led toincreasingly stringent federal regulationof CDL holders. States that do notfollow federal regulations risk loss offederal funds. Texas has passed lawsand regulations as required by Con-gress.

Statistically, commercial motorvehicles are three times more likely tobe involved in fatal accidents thanother vehicles. Commercial vehicledrivers are also twice as likely to beinvolved in collisions.

Judges do not make the law. Judgesfollow the law. As judges, we canunderstand the purpose of a law andbe persuaded that it is desirable andthoughtful. But even if not in agree-ment with the wisdom of a law,judges must follow the law. To dootherwise would violate our oath asjudges, lead to chaos and bring thejudiciary into disrespect.

The public deserves judges whofollow the law and observe the high

ethical standards of the judiciary.____________________1 Section 3(1), Motor Carrier SafetyAct (MCSA) of 1999.2 49 USC §31311(a)(19).3 145 Cong. Rec. H12870-12874 (dailyed. Nov. 18, 1999); 145 Cong. Rec.S15207-152111 (daily ed. Nov. 19,1999).4 49 CFR §384.226.5 Section 522.041, T.C.6 Section 522.042, T.C.7 Section 522.003(25), T.C.8 Article 45.051(f), C.C.P.9 Texas Constitution Article V §1-a(6).10 Section 33.001(b), G.C.11 In re Barr, 13 S.W.3d 525, 532 (Tex.Rev. Trib. 1998).12 In re Lorona, 875 P.2d 795, 802(Arizona, 1994).13 In re Barr, 13 S.W.3d 525, 565 (Tex.Rev. Trib. 1999).14 Snow’s Case, 674 A.2d 573, 577 (NewHampshire, 1996).15 516 N.E.2d 1207 (Court of Appealsof New York, 1987),16 Conti at 418.

LCI RuleRevision

On August 3, 2006, the TexasCommission of Licensing andRegulation adopted a rule revision thatpostpones for four months therequirement that licensed courtinterpreters earn continuing educationhours to renew their licenses.

Before the Commission voted torevise the rule, licensed courtinterpreters whose licenses expiredafter September 1, 2006, wererequired to obtain eight hours ofcontinuing education credit to renew


Ethics Opinion Number 291 (2005)

Legal Representation of Judge orCourt Staff by County Attorney

QUESTION: Would it be a violationof the Code of Judicial Conduct for ajudge or the judge’s staff to berepresented by the County Attorney incourt proceedings wherein the judgeand/or the court staff have been suedin their official capacity, even thoughthe judge presides over cases in whichthe County Attorney, or an AssistantCounty Attorney, represents the Statein mental health and indigentguardianship matters, and the Countyin various areas of civil litigationinvolving its various departments,agencies, and programs?

ANSWER: No.

The Committee expresses no opinionconcerning the legality of any giventype of legal representation. Legalrepresentation by the County Attorneyis established by the Constitution andlaws of the State of Texas. Assumingthat a given type of representation isauthorized by law, and further thatthere are no other facts present whichwould otherwise require recusal ordisqualification under Canon 3(B)(1),the Committee is of the opinion thatthe judge can be represented by the

County Attorney and continue topreside over other matters in whichthe County Attorney is appearing aslegal counsel.

Ethics Opinion Number 292 (July2006 )

Solicitation of Wedding Business

QUESTION: May a judge directlycontact couples as they leave a countyclerk’s office with their marriagelicense for the purpose of soliciting amarriage ceremony for pay?

ANSWER: No.

Canon 2A states in part “ A judge …should act at all times in a manner thatpromotes public confidence in theintegrity …of the Judiciary.” It is thebelief of the Committee that a judge’sactive solicitation of wedding businessin this manner does not promotepublic confidence in the judiciary.

The judge should also be mindful ofthe restrictions of Canons 2B and 4D.Canon 2B prohibits using the “prestigeof judicial office to advance theprivate interests of the judge orothers.” Canon 4D requires judges to“refrain from financial and businessdealings that tend to …exploit his orher judicial position.” Solicitation ofwedding business in this manner is ause of the prestige of judicial office toadvance the judge’s private interestsand constitutes financial and businessdealings that exploit the judge’s judicialposition.

Canon 4I (1) provides, “A judge mayreceive compensation…for the extra-judicial activities permitted by thisCode, if the source of such paymentdoes not…give the appearance ofimpropriety.” The committee believesthat the acts described above give theappearance of impropriety.

Ethics Opinions 291 and 292their licenses. The Commission’saction, however, delays the effectivedate of the continuing educationrequirement until January 1, 2007.

This means that licensed courtinterpreters whose licenses expirebetween September 1, 2006, andDecember 31, 2006, do not need totake any continuing education classesto renew their licenses. All licensedcourt interpreters whose licensesexpire after on or after January 1,2007, will be required to prove theyhave earned eight hours of continuingeducation before their licenses will berenewed.

The Commission elected to delay theeffective date of the rule because ofthe scarcity of continuing educationcourses available to licensed courtinterpreters. TDLR currently hasapproved only two continuingeducation courses, and one of theapproved courses was a one-time onlyoffering. Seven continuing educationproviders have been approved, butonly one on-going course has beenapproved.

To find a list of approved continuingeducation courses or check thenumber of hours of continuingeducation you have completed, go towww.license.state.tx.us/court/lcice.htm.

2006 Ethics CommitteeMembers

Hon. Stephen B. Ables, ChairHon. Caroline BakerHon. Cathy ChochranHon Lora J. LivingstonHon. Menton MurrayHon. Kathleen OlivaresHon. Brian QuinnHon. Penny RobertsHon. Mark RuschHon. Melissa GoodwinHon. Robin A. Ramsay

Ethics Opinions Q&ATo ask an ethics question, contact JudgeStephen B. Ables (830/792-2290) orthe State Commission on JudicialConduct (877/228-5750).


FROM THE CENTER

Municipal Court WeekDuring the week of November 6-10, 2006, municipalcourts across Texas are encouraged to host events recogniz-ing the work of local courts and personnel by celebratingMunicipal Court Week.

Possible activities include:

• Inviting the city council and public to tour your court,and asking the presiding judge to make a short presen-tation.

• Showing the TMCEC video Role of the Municipal Courtto schools and civic groups. (Call TMCEC if you donot have a copy: 800/252-3718.)

• Inviting a local high school government class to host amock trial at your court.

Log on to the TMCEC website (www.tmcec.com) formore ideas!

Each year more courts and cities join in this annual recogni-tion of the important role municipal courts play in theircommunities. A variety of events are sponsored, includinglocal proclamations, balloons and candy, receptions, exhib-its, student field trips, mock trials, Q & A sessions, theatricalproductions, appreciation dinners, court tours, open houses,amnesty programs, video showings, and newsletter/newspaper articles. “We hope for even greater participationin 2006,” said TMCEC/TMCA President StevenWlliamson (Fort Worth). “This is an excellent opportunityfor the court to educate the public and city council aboutmunicipal court.”

Courts are asked to send TMCEC copies of any local pressreleases, newspaper articles, planning documents, photo-graphs, etc. celebrating the important contributions of Texasmunicipal courts in their communities. These materials willbe displayed on the TMCEC website as examples toencourage participation by other courts. Please send yourmaterials to TMCEC, 1609 Shoal Creek Blvd., Suite 302,Austin, Texas 78701 or email them to [email protected].

TMCEC expresses its appreciation to Texas RepresentativesBurt Solomons and Kenny Marchant, who sponsored theHouse Resolution in the 78th Legislature establishingMunicipal Court Week.

Bailiff/WarrantOfficer Seminars

A specially designed program for bailiffs and warrantofficers will be offered by TMCEC in Kerrville on Octo-ber 30 – November 1, 2006 at the Inn of the Hills. Theprogram will also be held in Corpus Christi in June. Regis-tration is $50, and TCLEOSE credit will be offered at noadditional charge. Housing, course materials, two breakfasts,and a lunch will be provided. Please register by October 1,2006.

Monies from your court’s Security Fund may be used tocover the registration fee, as court security is on the agenda.

A registration form can be found in the TMCEC AcademicSchedule and on page 16 of this newsletter, and a flyer willbe mailed to all courts in mid September. If you havequestions about the program, please contact Lois Wright atTMCEC (800/252-3718).

MCLE FeesAs announced in the December 2005 Municipal CourtRecorder, the TMCA/TMCEC Board of Directors adopteda policy to charge a mandatory $50 registration fee to allprogram participants (including attorney and non-attorneyjudges, clerks, court administrators, bailiffs, and warrantofficers) for programs not offered at the TMCEC office inAustin. This fee is effective September 1, 2006.

In addition, the Board adopted an optional $100 fee thatwill only apply to attorney judges who wish to receiveMCLE credit for their attendance at TMCEC programs.This optional fee is also effective September 1, 2006.

I am an Attorney Judge. Must I pay the fee?

There are notable exemptions from the $100 fee. Forexample, if attorney judges take the judicial exemption ordo not need or want the MCLE credit, they will not paythe $100 fee. Should judges choose to take the judicialexemption, they will still receive judicial education credit.Further, any member of the State Bar of Texas who is 70years of age or older is exempt from MCLE requirements.If they are not reporting MCLE hours to the State Bar ofTexas, they would not be required to pay the $100 fee toTMCEC as the hours would not be reported.

continued


TMCEC FY06 PROGRAM AUDIOTAPESThe following are audiotape recordings from TMCEC’s El Paso Regional 12-Hour Judges andClerks Programs. Duplicates are available through the Center at no charge; one set per court.

Check herefor specifictapes

JUDGES PROGRAM:___ Points: Driver’s Responsibility — Sherrie Zgabay, Driver Improvement Manager, DPS___ CDL, DSC & Deferred Disposition Update — Gary Ellsworth, Judge, Spearman & Robin

A. Ramsay, Presiding Judge, Denton___ The Ethical Price of Masking — Robin A. Ramsay, Presiding Judge, Denton___ Federal & State Case Law Update — Ryan K. Turner, General Counsel, TMCEC___ Pretrial Hearings — Rick Cate, Municipal Judge, Helotes___ Ignition Interlock Devices — Robin A. Ramsay, Presiding Judge, Denton___ Handling Government Documents — Ted Wood, Special Counsel for Trial Courts, Office

of Court Administration, Austin___ Orders — Tony Kosta, Municipal Judge, Harker Heights___ Youthful Drivers — Gary Ellsworth, Judge, Spearman___ Proper Reporting to the Office of Court Administration (OCA) — Angela Garcia, Judicial

Information Manager, OCA___ Corporate Defendants — Ryan K. Turner, General Counsel, TMCEC___ Procedural & Substantive Legislative Update — Ed Spillane, Presiding Judge, College

Station___ FTA/Warrants — Margaret Robbins, Program Director, TMCEC___ Basic Vocabulary & Concepts — Robert C. Richter, Jr., Judge, Missouri City___ Juvenile Issues Update — Ryan K. Turner, General Counsel, TMCEC___ Dismissals — Brian Holman, Presiding Judge, Lewisville___ Ordinances — Stephen Crane, Judge, Garland & Sachse___ Transportation Code Update — C. Victor Lander, Judge, Dallas___ Appeals — Brian Holman, Presiding Judge, LewisvilleCLERKS PROGRAM:___ Professionalism & Court Decorum — Jan Matthews, Municipal Judge, Lubbock___ DSC/Deferred — Margaret Robbins, Program Director, TMCEC___ Juveniles — Margaret Robbins, Program Director, TMCEC___ CDLs & Commercial Motor Vehicles — Robin D. Smith, Presiding Judge, Midland___ Who is In Charge of What and When — Robin A. Ramsay, Presiding Judge, Denton___ Court Costs & Avoiding Fraud — Rene Henry, Financial Management Specialist, Austin___ Collection Roles — Jim Lehman, Collections Specialist, OCA___ Court Security — Ed David, Marshal, Baytown

Return order to 1609 Shoal Creek Blvd. #302, Austin, TX 78701 or fax to 512/435-6118.

Name: _______________________________________________________________________

Title: ________________________________________________________________________

Court: _______________________________________________________________________

Address: _____________________________________________________________________

City, State, Zip Code: ___________________________________________________________

Telephone Number: ____________________________________________________________

E-mail Address: _______________________________________________________________

Why Pay the Fees?The Board chose to adopt these feesto offset the rising costs of fuel,which in turn increase TMCECtraining expenses including travel costsfor faculty and staff, freight costs, andcourse material costs. Additionally, the79th Texas Legislature approvedincreasing travel allowances from $80to $85 a night for lodging, from $30to $36 a night for meals, and from 35cents to 44.5 cents for mileage. Noadditional grant funds were allocatedfor judicial education. Given theseeconomic realities, the Board adoptedthese fees rather than cut TMCECprograms or staff.How Do I Pay the Fees?The fees will be payable to TexasMunicipal Courts Education Centerby check or credit card with theregistration forms.Letters of concern regarding the newfees may be sent to the HonorableJudge Robin A. Ramsay, President ofthe TMCEC Board of Directors, atthe following address:

Presiding JudgeCity of Denton

601 E. Hickory, Suite DDenton, TX 76205

FAX: 940/349-9924EMAIL:

[email protected]

We look forward to working withyou over the upcoming year as westrive to make each program weoffer even more informative andhelpful to you.

Format: cassette(check one) compact disk

Note: Expect 2-3 weeks for delivery.


TEXAS MUNICIPAL COURTS EDUCATION CENTER FY07 REGISTRATION FORMTEXAS MUNICIPAL COURTS EDUCATION CENTER FY07 REGISTRATION FORMTEXAS MUNICIPAL COURTS EDUCATION CENTER FY07 REGISTRATION FORMTEXAS MUNICIPAL COURTS EDUCATION CENTER FY07 REGISTRATION FORMTEXAS MUNICIPAL COURTS EDUCATION CENTER FY07 REGISTRATION FORM

32-hour New Clerks Conference

at the Doubletree Hotel Austin, September 25-29, 2006

TMCEC computer data is updated from the information you provide. Please print legibly and fill out form completely.(Please print legibly): Last Name: ____________________________ First Name: ________________________ MI: ____Names also Known By: ____________________________________________________________ Female/Male: ________Position Held: _________________________________________________________________________________________Date Appointed/Hired/Elected: ___/_____/______ Years Experience: ____________________________________________Emergency Contact: ____________________________________________________________________________________

Housing InformationTMCEC will make all hotel reservations from the information you provide on this form. TMCEC will pay for a single occupancy room atall seminars (four nights at the 32-hour seminars). To share with another seminar participant, you must indicate that person’s name on this form.___ I need a private, single-occupancy room.___ I need a room shared with a seminar participant. [Please indicate roommate by entering seminar participant’s name:

_______________________________________________ (Room will have 2 double beds.)]___ I need a private double-occupancy room, but I’ll be sharing with a guest. [I will pay additional cost, if any, per night.]I will require: ___1 king bed ___2 double beds___ I do not need a room at the seminar.How will you be traveling to the seminar? ___Driving ___FlyingArrival date (Class begins at 1:00 p.m. on 9/25/06): ________________________ ___Smoker ___Non-Smoker

Municipal Court of: ______________________________________ Email Address: ________________________________Court Mailing Address: _____________________________________ City: _______________________ Zip: ___________Office Telephone #: _________________________ Court #: ____________________ FAX: _________________________Primary City Served: ____________________________ Other Cities Served: ______________________________________

STATUS (Check all that apply):___Full Time ___Part Time ___Court Administrator ___Court Clerk ___Deputy Clerk Other: ___________________I certify that I am currently serving as a municipal court clerk in the State of Texas. I agree that I will be responsible for any costs incurred if I do notcancel five (5) working days prior to the seminar. I will cancel by calling the Center. If I must cancel on the day before the seminar due to an emergency,I will call the TMCEC registration desk at the seminar site. If I am a “no show,” TMCEC reserves the right to invoice me or my city for meal expenses,course materials and possibly housing ($85 plus tax per night). If I have requested a room, I certify that I live at least 30 miles or 30 minutes driving timefrom the seminar site. A $50 registration fee is required. Only checks and credit card payments are accepted. Payment due with registration form.

___________________________________________________________________________________________Participant Signature Date

Return to TMCEC, 1609 Shoal Creek Blvd.#302, Austin, TX 78701. Fax registration forms with credit card information to 512/435-6118.

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

A Basic 32-Hour Court Support Personnel Seminar: A Basic 32-Hour Court Support Personnel Seminar: A Basic 32-Hour Court Support Personnel Seminar: A Basic 32-Hour Court Support Personnel Seminar: A Basic 32-Hour Court Support Personnel Seminar: September 25-29, 2006Only new court clerks or court clerks who have never attended a TMCEC seminar are eligible to attend this program.Many cities are unaware that municipal court clerks are court officers and must observe the same standards of fidelity and diligence that the Codeof 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 the bounds of his or her authority, the clerk, judge, and citymay be subject to liability. This program will help clerks perform their jobs properly and more effectively and accurately.

REGISTRATION INFORMATIONSEMINAR: The cost to attend is $50. The seminar will be conducted at the Doubletree Austin located at 6505 IH-35 North. It begins Monday,September 25 and concludes Friday, September 29. Registration begins on Monday at 10:00 a.m. Class begins at 1:00 p.m. on Monday and concludeson Friday at 12:00 p.m.HOTEL REGISTRATION: The Center makes all hotel reservations from the information that you provide on your seminar registration form. TheCenter pays the entire cost of the room for the nights of 9/25, 9/26, 9/27, and 9/28. You are responsible for your incidentals (telephone calls, roomsservice, 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, and Thursday, breakfast and lunchare provided. On Friday, only breakfast is provided. Guests are not allowed to join seminar 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, you will be billed for the first night’slodging costs, meal expense, and course material ($270). Cancel by calling the Center.


Low Volume Courts Series for Judges & Clerks

McALLENNovember 6-7, 2006Renaissance Casa de Palmas101 N. Main Street

NOTES:

• These seminars are for non-attorney judges and clerks who have previously completed the first year’s training. They do not offer MCLEcredit to attorney judges.

• Judges and clerks who attended this program in FY06 cannot attend in FY07.• Enrollment is limited to 40 participants for each seminar, providing ample opportunity for questions and answers.• On-site seminar registration begins at 7:00 a.m. on Day 1; there are no pre-conferences scheduled.

ABILENEMarch 8-9, 2007MGM Elegante Suites4250 Ridgemont Drive

TYLERApril 24-25, 2007Holiday Inn Tyler5701 Broadway

Not for mandatory judicial education credit.

Meet with TMCEC staff members to discuss key concepts and processes formunicipal courts in Texas. Not only will you leave understanding how municipalcourts are structured in this state, but you will also carefully examine proceduresrelated to Driving Safety Courses (DSC) and Deferred Disposition.

10:00 a.m. - 3:30 p.m.

(Lunch provided at no charge.)

Check the Orientation date that you would like to attend:

Wednesday, October 18, 2006

Wednesday, February 14, 2007

Wednesday, April 18, 2007

ORIENTATION REGISTRATION FORM

Name:_______________________________________ Title:______________________________________

Court Represented:_________________________________________ Hire Date:_______________________

Court Address:____________________________________ City:_________________ Zip:______________

Telephone Number:__________________ Fax Number:_______________________ E-mail:_____________

Call to enroll: 800/252-3718 or 512/320-8274 or fax registration form: 512/435-6118

Orientation for New Judges and Clerks

Since 1999, TMCEC has offered a series of continuing judicial education programs for non-attorney judges and theirclerks. Known as the Low Volume Court Seminar, this series offers an opportunity for judges and clerks to collectively exam-ine issues and problems commonly experienced in smaller courts. In FY07, these conferences will focus on the applicationof state and federal constitutional law to procedures in municipal court. The seminar will include instruction about magis-trate, juvenile and traffic issues.

Enrollment is limited to 40 eligible participants so that there can be more involvement by attendees. Come prepared toparticipate. The Low Volume Court Seminar begins at 8:00 a.m. on Day 1 and ends at 12:00 noon on Day 2. The registra-tion fee is $50.

There is no registration fee for this program.


Conference Date(s) City Hotel Information

TMCA Annual Meeting September 14-16, 2006 Galveston San Luis Resort & Spa, 5222 Seawall Blvd.

32-Hour New Clerks September 25-29, 2006 Austin Doubletree Austin, 6505 IH-35 North

12-Hour Regional Clerks October 10-11, 2006 Nacogdoches Fredonia Hotel, 200 North Fredonia

12-Hour Regional Judges October 12-13, 2006 Nacogdoches Fredonia Hotel, 200 North Fredonia

12-Hour Bailiffs/Warrant Officers Oct. 31 - Nov. 1, 2006 Kerrville Inn of the Hills, 1001 Junction Highway

12-Hour Low Volume Seminar November 6-7, 2006 McAllen Renaissance Casa de Palmas, 101 N. Main Street

12-Hour Regional Judges and Clerks November 16-17, 2006 Austin Omni Hotel Southpark, 4140 Governor’s Row

32-Hour New Judges and Clerks December 4-8, 2006 Austin Omni Hotel Southpark, 4140 Governor’s Row

12-Hour Prosecutors January 16-17, 2007 Austin Omni Hotel Southpark, 4140 Governor’s Row

Court Administrator Special Topic: January 16-18, 2007 Austin Omni Hotel Southpark, 4140 Governor’s RowICM: Human Resource Management

12-Hour Regional Judges and Clerks January 30-31, 2007 San Antonio Omni San Antonio Hotel, 9821 ColonnadeBlvd.

Courts & Local Government Technology Jan. 30 - Feb. 1, 2007 Austin Austin Convention Center

Level III Assessment Clinic February 9-11, 2007 New Braunfels John Newcombe Tennis Ranch, 325 MissionValley

12-Hour Regional Judges and Clerks February 26-27, 2007 Houston Omni Houston Hotel, Four Riverway

12-Hour Low Volume Seminar March 8-9, 2007 Abilene MGM Elegante Suites, 4250 Ridgemont Drive

12-Hour Regional Judges and Clerks March 22-23, 2007 Richardson Richardson Hotel, 701 East Campbell Road

12-Hour Regional Judges and Clerks April 12-13, 2007 Amarillo Ambassador Hotel, 3100 I-40 West

12-Hour Low Volume Seminar April 24-25, 2007 Tyler Holiday Inn Tyler, 5701 South Broadway

12-Hour Regional Clerks May 1-2, 2007 S. Padre Island Radisson South Padre Island, 500 Padre Blvd.

12-Hour Regional Judges (Attorneys) May 7-8, 2007 S. Padre Island Radisson South Padre Island, 500 Padre Blvd.

12-Hour Regional Judges May 9-10, 2007 S. Padre Island Radisson South Padre Island, 500 Padre Blvd.(Non-Attorneys)

12-Hour Prosecutors May 23-24, 2007 Houston Omni Houston Hotel at Westside, 13210 KatyFreeway

12-Hour Bailiffs/Warrant Officers June 11-12, 2007 Corpus Christi Omni Corpus Christi Hotel Marina Tower, 707North Shoreline

12-Hour Court Administrators June 13-14, 2007 Corpus Christi Omni Corpus Christi Hotel Marina Tower, 707North Shoreline

12-Hour Regional Judges and Clerks June 27-28, 2007 Odessa MCM Elegante, 5200 E. University

32-Hour New Judges and Clerks July 16-20, 2007 Austin Omni Hotel Southpark, 4140 Governor’s Row

2007 Legislative Updates: August 7, 2007 Lubbock Holiday Inn Hotel & Towers, 801 Avenue QAugust 14, 2007 Houston Omni Westside, 13210 Katy FreewayAugust 17, 2007 Austin Omni Southpark, 4140 Governor’s Row

2006-2007 TMCEC Academic Schedule At-A-Glance


TEXAS MUNICIPAL COURTS EDUCATION CENTER FY07 REGISTRATION FORM

Conference Date: _____________________________ Conference Site: ____________________________Check one: Non-attorney Judge ($50 fee) Clerk ($50 fee) Prosecutor ($250 fee)

Attorney Judge not seeking CLE credit ($50 fee) Court Administrator ($50 fee) Prosecutor not requiring a room ($100 fee) Attorney Judge seeking CLE credit ($150 fee) Assessment Clinic ($100 fee) Bailiff/Warrant Officer* ($50 fee)

TMCEC computer data is updated from the information you provide. Please print legibly and fill out form completely.(Please print legibly): Last Name: __________________________________ First Name : _____________________________ MI: __________Names also known by: ________________________________________________________________________ Female/Male: ____________Position held: _______________________________________________________________________________________________________Date appointed/Hired/Elected:____________ Years experience: ________ Emergency contact:_____________________________________

HOUSING INFORMATION

TMCEC will make all hotel reservations from the information you provide on this form. TMCEC will pay for a single occupancy roomat all seminars: four nights at the 32-hour seminars, three nights at the 24-hour seminars/assessment clinics and two nights at the 12-hourseminars. To share with another seminar participant, you must indicate that person’s name on this form.

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

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

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

How will you be traveling to seminar? Driving Flying Arrival date: _______________________________________________________ Smoker Non-Smoker

Municipal Court of: _______________________________________________________ Email Address:Court Mailing Address: __________________________________________ City: ____________________________ Zip: ________________Office Telephone #: __________________________________________ Court #: _____________________ FAX: _____________________Primary City Served: __________________________________________ Other Cities Served: ______________________________________STATUS (Check all that apply):

Full Time Part Time Attorney Non-Attorney Presiding Judge Associate/Alternate Judge Justice of the Peace Mayor (ex officio Judge) Court Administrator Court Clerk Deputy Court Clerk Other: Bailiff/Warrant Officer* Prosecutor

*Bailiffs/Warrant Officers: Municipal judge’s signature required to attend Bailiff/Warrant Officer programs.Judge’s Signature: _________________________________________________________________ Date: _______________________Municipal Court of: _______________________________________________________________________________________________

I certify that I am currently serving as a municipal judge, prosecutor or court support personnel in the State of Texas. I agree that I will beresponsible for any costs incurred if I do not cancel five (5) working days prior to the conference. I will cancel by calling the Center. If I mustcancel on the day before the seminar due to an emergency, I will call the TMCEC registration desk at the conference site. If I do not attend theprogram, TMCEC reserves the right to invoice me or my city for meal expenses, course materials and, if applicable, housing ($85 plus tax pernight). I understand that I will be responsible for the housing expense if I do not cancel or use my room. If I have requested a room, I certify that Ilive at least 30 miles or 30 minutes driving time from the conference site. Participants in the Assessment Clinics must cancel in writing two weeksprior to the seminar to receive refund. Payment is due with registration form. Registration shall be confirmed upon receipt of registrationform and payment.

Participant Signature ______________________________________________________________ Date ______________________________

PAYMENT INFORMATION Check Enclosed (Make checks payable to TMCEC.) Credit Card (Complete the following; $2.00 will be added for each registration made with credit card payment.)

Credit Card Registration: (Please indicate clearly if combining registration forms with a single payment.)Credit Card Number Expiration Date Verification Number

Credit card type: ________________________________ _____________ (found on back of card) MasterCard Name as it appears on card (print clearly): _____________________________________________ _______________ Visa Authorized Signature: _____________________________________________

Please return completed form with payment to TMCEC at 1609 Shoal Creek Boulevard, Suite 302, Austin, TX 78701.Fax registration forms with credit card information to 512/435-6118.


CLERK’S CORNER

By Margaret Robbins, Program Director, TMCEC

Use of Credit CardsToday many courts take credit cardsfor payment of fines and court costs.Some courts do not realize thatChapter 132 of the LocalGovernment Code requires their citycouncil to approve the use of creditcards or electronic payments beforethe courts can use those methods ofpayments.

Section 132.001 defines “credit card”to mean “a card, plate or similardevice used to make purchases oncredit or to borrow money.” Thatstatute defines “payment by electronicmeans” to mean a “payment bytelephone or computer but does notinclude payment in person or bymail.”

Section 132.002 provides that thegoverning body of the city mayauthorize the acceptance of paymentsof fines, court costs or other chargesby credit card without requiring acollection fee. Section 132.003,however, allows the city to set aprocessing fee not to exceed fivepercent of the amount of the fee,fine, court costs, or other chargebeing paid. In other words, the courtcould collect the five percent at thetime the charge is made to the creditcard.

Section 132.004 states that when acredit card is not honored, the citymay collect a service charge inaddition to the five percent that wascollected at the time the charge wasmade. The amount of the servicecharge is the same amount as the fee

charged for a check drawn on anaccount with insufficient funds.

Section 132.005 gives cities theauthority to contract with companiesthat issue credit cards to collect andseize cards that are outdated orotherwise unauthorized. This statutealso allows the city to charge thecompany a fee for the return of thecredit cards.

Section 132.006(b) provides that allfees or charges collected underChapter 132 must be deposited in thegeneral fund of the city.

Courts should consult with their cityattorney and accounting departmentsabout how set up these contracts.

Handling Hot ChecksThis article will not by any meansaddress all the issues involved withhandling hot checks, but I hope that itwill pique the courts’ interests enoughto investigate the issue more. Whilemunicipal court has the jurisdiction tohandle insufficient funds checks frommerchants, I will leave that issue foranother article. At this time, I willaddress handling insufficient checksfor payment of a fine and costs only.

When a defendant’s check forpayment of fine and costs “bounces,”what should the court do? First, thecourt should realize that the fine andcosts are not paid. The court can senda notice to the defendant and givethem an opportunity to bring in cashto take care of their judgment. If theprosecutor is contemplating filing onthe defendant for the offense of

issuance of bad check, the noticeshould be sent certified mail withreturn receipt requested. (Issuance ofbad check is a Class C misdemeanorthat can be filed in municipal court.See Section 32.41, Penal Code.) If thecourt does not hear from thedefendant, notify the prosecutor. Thenext step is to prepare a capias pro fine.(One thing the court cannot do iscollect the insufficient check fee.)

Most likely, 31 days have passed sincethe judgment. Hence, the timepayment fee is now due. If the courthas a contract with an outside vendoror the Texas Department of PublicSafety, the court will notify them ofthe failure to pay. If the prosecutorfiles the charge of issuance of badcheck, with a probable cause affidavit,the court will issue a warrant of arrestfor this charge.

One important thing to remember iswhether or not the court has reportedthe court costs to the StateComptroller because the court doesnot want to double report court costs.If the court reported the court costson the first payment from the checkthat “bounced,” make sure that theyare not reported a second time. Thecash payment from the defendantmaking the check good would just bereimbursing the city for the paymentof the court costs already sent to theState.

All of this just because the defendantfailed to pay the fine and costs whenthe defendant’s check “bounced.” Itnever ends?


Courts, including municipal courts, are progressivelybecoming more technologically advanced. Unless oneenjoys typing “court technology” into Google and thenhoping for the best, it helps to know where to look fortechnological resources. The following is an overview ofsources of technology that are designed to assist municipalcourts in their functioning and efficiency. Visiting thewebsites provided or directly contacting the agencies viaemail or phone will provide further information.

Office of CourtAdministration (OCA)

The OCA Judicial Committee on Information Technologyis dedicated to integrating technology in trial and appellatecourts. The Committee therefore offers guidelines for useof technology in courts, has special contracts with Lexisand Westlaw that allow courts to get discounted access tothese very useful databases, and provides information onhow courts may acquire surplus and deeply discountedcomputer software. The OCA website also providesinformation on grants that will assist courts in implementingtechnological changes.

Department of Information Resources (DIR)

The DIR was established to manage and monitor the useof information technology in state agencies. This is theplace to come for education and training. DIR has con-tracted with various agencies to provide training. Also, stateagencies and courts can purchase through the DIR websitefrom vendors (such as Dell and HP) with whom DIR hasnegotiated special rates. DIR makes training and purchasingequipment easier by contracting with vendors so that courtswill not have to. Navigation of the DIR website is easy andvery worthwhile to explore.

National Association for Court Management (NACM)

This national website contains an “IT Corner,” which hasvarious links to vendors, IT forums and other technology-related websites. The list of vendors providing services toTexas courts is smaller than the DIR list, and NACMmembership is required to partake in special contract prices.The link to the National Center for State Courts’ Technol-ogy website (www.ncsconline.org/D_Tech) is particularly

interesting. There is, for example, an article discussing theuse of an ATM to pay jurors for jury service.

Website Hosting?

While the Texas Association of Counties (TAC) offers freewebhosting for member counties, this option is availableto individual municipalities for $10 a month if they joinCIRA. For more information, contact Gayle Latham atTAC (512/478-8753). A city website can be extremelyuseful and is recommended, but cities must individuallyfind the means to create websites. To view examples ofcity websites, see www.tmcec.com/courts.html.

Untangling the Court Technology WebBy Elisabeth Gazda, TMCEC Program Coordinator

Contact Info

OCA, www.courts.state.tx.us/oca/jcit

Inquiries specific to information technology may bedirected to 512/463-1603, [email protected]

DIR, www.dir.state.tx.us

General inquires: 512/475-4700 [email protected]

NACM (IT Corner), www.nacmnet.org/itcornerwelcome.html

General inquiries: 800/616-6165 or [email protected]

TAC, www.cira.state.tx.us

Webhosting: 512/478-8753 [email protected]

COURT TECHNOLOGY


TRAFFIC SAFETY

About the 80 mphSpeed Limit

• HB 2257, passed in 2005, called for an increase in speedlimits on portions of rural interstate highways in Texas.

• The 80 mph speed limits apply to cars and small trucks,and only during daylight hours.

• The maximum nighttime speed remains 65 mph for allvehicles.

• Speed limits for 18-wheelers/large trucks remain 70 mphduring the day; 65 mh at night.

• Affected counties: Crockett, Culberson, Hudspeth, JeffDavis, Kerr, Kimble, Pecos, Reeves, Sutton, and Ward.

• Location: 432 miles on I-10 and 89 miles on I-20.

(Source: Transportation News, May 2006, page 8.)

Record High!A statewide survey conducted by the Texas Transporta-tion Institute reports that Texas has achieved a recordhigh safety belt use rate in 2006 for Texas: 90.44percent! This is the first year for Texas to reach the90 percent level. From Terry Pence, Section Head ofTraffic Safety at TxDOT: “A special thanks goes out toyou and the communities and organizations you workwith that were involved in the Click It or Ticketcampaign efforts this year. You helped make a differ-ence! This will result in saving many lives and injuries inTexas.”

Year Passed Speed in MPH

1907 181919 251923 351928 451942 351945 351963 701974 551987 65 (rural interstates only)1995 702001 75 (counties with less than

15 persons per square milepopulation density)

2006 80 (in 10 rural interstate countiesonly)

Maximum Texas Speed LimitsOver the Years

2006 Safety BeltUse in Texas

All Passenger Passenger PickupsVehicles Cars

Front SeatEstimated 90.44% 91.39% 86.43%Safety Belt Use

DriverEstimated 91.75% 92.75% 86.84%Safety Belt Use

PassengerEstimated 84.38% 85.49% 73.90%Safety Belt Use


TEXAS MUNICIPAL COURTSEDUCATION CENTER

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

TMCEC MISSIONSTATEMENT

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

Change Service Requested

Presorted StandardU.S. Postage

PAIDAustin, Texas

Permit No. 114

Meet the New TMCEC StaffMEICHIHKO PROCTOR

Meichihko Proctor joined theTMCEC staff on August 1, 2006 asthe Program Attorney and DeputyCounsel. Meichihko is originally fromSan Angelo, Texas, where she receiveda bachelor’s degree in government andpsychology from Angelo StateUniversity. Upon graduation,Meichihko enjoyed a career inspeechwriting for the City ofLubbock while pursuing a master’sdegree in sociology with a minor inpublic administration at Texas TechUniversity. She went on to graduatefrom the St. Mary’s Law School inSan Antonio in 2002. Prior to joining

TMCEC, she worked as an associateat Bickerstaff, Heath, Pollan &Caroom practicing municipal law.From 2003-2004, Meichihko was anassistant city attorney for the City ofPlano, prosecuting cases in municipalcourt. She was also the ChiefProsecutor for Domestic Violence inTom Green County. Her expertiseand energy assure a fantastic Judges’Program for FY07.

LOIS WRIGHT

Lois Wright joined TMCEC in April2006 as Program Attorney. Herhometown is Sabinal, Texas, a smalltown due west of San Antonio. Lois

attended the University of Texas atAustin, where she obtained first abachelor’s degree in anthropology, andthen her Juris Doctorate. In law school,Lois was active in the Texas Journal ofWomen and the Law, the CapitalPunishment Clinic, and the MediationClinic. She clerked at the DistrictAttorney’s Office in Travis Countythroughout law school. Lois will bringa fresh perspective to the Bailiff andWarrant Officer Program, and shelooks forward to assisting with theNew Judges’ Program as well.