Featured: Rep. Terry Canales, D-Edinburg, addresses audience members during the Legislative Report Card Luncheon, sponsored by the Rio Grande Valley Hispanic Chamber of Commerce, and held at the Cimarron Country Club in Mission on Thursday, August 16, 2018.
Photograph By LUIS LARRAGA
New law designed to protect Texans from being jailed for minor traffic tickets has resulted in 300,000 fewer arrest warrants, announces Rep. Canales
By DAVID A. DÍAZ
A state law by Rep. Terry Canales, D-Edinburg, has helped significantly reduce the number of arrest warrants issued for people who could have gone to jail, especially those who did not have the money to pay for minor traffic tickets or other Class C misdemeanors, or for people who could not pay fines for failure to appear in court on those minor offenses, according to the Texas Office of Court Administration.
For Class C misdemeanors, there is no jail time, and the fine is limited up to $500. But a person can be put in jail for not paying the fines or failure to appear in court.
An arrest warrant is a judge’s order to law enforcement officers to arrest and bring to jail a person charged with a crime, according to:
Prior to that law going into effect on September 1, 2017, Texans who could not leave work or family responsibilities, who did not have transportation to have their case heard before a local judge, or who did not have the money to pay the fine were routinely being jailed, resulting in what Canales said was an unconstitutional “debtor’s prison”.
Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. Yet, recent years have witnessed the rise of modern-day debtors’ prisons — the arrest and jailing of poor people for failure to pay legal debts they can never hope to afford, through criminal justice procedures that violate their most basic rights.
Canales’ legislation, which was successfully carried in the Texas Senate by Sen. Juan “Chuy” Hinojosa, D-McAllen, resulted in the new state law.
The new state law “has made a huge step forward in ending Texas’ debtors prison system,” said Canales. “In Texas, tens of thousands of Texans were being jailed for failure to pay tickets, fines and court fees from Class C traffic tickets. When we jail someone for a traffic ticket, you and me are paying $85 a day to lock them up. The state has not collected any money, we are actually paying money out.”
He noted that an update recently provided to him by the Texas Office of Court Administration reported that since the law he authored went into effect – House Bill 351 – “our state has issued 300,000 fewer Class C warrants, while collecting more money for cities and the state per case and with more people doing community service to satisfy their offense.”
The Office of Court Administration (OCA) is a unique state agency in the Judicial Branch that operates under the direction and supervision of the Supreme Court of Texas and the Chief Justice. It’s mission is to provide resources and information for the efficient administration of the Judicial Branch of Texas.
In addition to the issue of fairness in the court system, Canales said the new state law frees valuable law-enforcement resources to tackle violent criminals, thieves, burglars, and the like.
“When we jail people for small time offenses, our police are not out on the street dealing with serious crimes like murder or burglary,” Canales said. “To make matters worse, we were spending too much money locally and across the state to lock up people who didn’t deserve to be in jail.”
Prior to the passage of HB 351 by Canales and Hinojosa in May 2017 – and which was signed into law by Gov. Greg Abbott in June 2017 – the number of poor people being jailed for minor offenses was reaching a staggering level, said the House District 40 state representative.
“In Texas, at the rate we were going, we were going to eventually be throwing a million poor people in jail every year for failure to pay tickets, fines and fees arising from court cases,” warned Canales, who is an attorney. “We have too many Texans statewide who are struggling to pay rent and groceries, then they were winding up getting ticketed and getting jailed for the most minor offenses, such as traffic violations.”
Canales added that the burden of jailing all these people for petty crimes ultimately falls on the shoulders of taxpayers.
“This whole system of putting poor people in jail had become a convenient cash cow for our government, which wants to squeeze money out of indigent Texans,” he said. “HB 351 provided a much better way for minor offenders to pay their debt to society without unjustly putting them behind bars.”
The new state law includes comprehensive changes recommended by the Texas Judicial Council to provide judges with new tools and procedures to hold low-income Texans accountable without jail time when they cannot pay their fines and court costs in criminal cases.
The Canales/Hinojosa legislation also helps clear up confusion in the now former state law so local judges, including justices of the peace, can allow the defendant to perform community service instead of being thrown into jail when they are found to be indigent.
“At the time of sentencing, judges should also be making judgments on whether defendants can even pay the fines that are levied,” Canales said. “Low-income Texans are being set up to fail by the way fines and fees are handled, and they are often driven deeper into poverty.”
A defendant who has the money to pay the fine, but refuses to pay it, would still face the risk of being jailed by a judge, he added.
HB 351 also helps save taxpayers’ money because of the hidden costs, such as the expenses and legal responsibilities involved in holding a person in jail.
“The valuable resources of our judicial and law enforcement professionals, and especially our jails, should remain focused on putting violent criminals, thieves and robbers behind bars, not on poor people charged with an offense whose only punishment is a fine,” said Canales.
HINOJOSA: “OUR FORMER SYSTEM WAS COUNTER-PRODUCTIVE”
Hinojosa, also an attorney, agreed with the need for the legislation authored by Canales.
“Our current system was counter-productive, and it trapped people into a cycle of debt when they could not pay their tickets and other low-level, fine-only citations. This practice also led to license suspensions and arrest warrants,” said Hinojosa. “In 2015, fines in over 677,00 cases were satisfied through jail credit and over 230,000 Texas were unable to renew expired licenses until their fines and fees were paid off.”
HB 351 allows courts to ask about a defendant’s ability to pay during the sentencing phase, Hinojosa explained.
“After making that determination, courts are now allowed to reduce or waive fines and costs and offer community service as an alternative. In 2015, judges resolved fine-only cases with community service just 1.3 percent of the time,” Hinojosa said. “HB 351 puts the justice system’s time and resources to more efficient use by holding people accountable while saving money and increasing public safety.”
As a condition of community supervision, HB 351 also allows a judge to require participation in a pretrial diversion program, said Hinojosa.
HB 351 also addressed the concerns of one of the more influential leaders in state: Nathan L. Hecht, the 27th Chief Justice of the Supreme Court of Texas.
“Jailing criminal defendants who cannot pay their fines and court costs are commonly called debtors’ prison – keeps them from jobs, hurts their families, makes them dependent on society, and costs the taxpayers money. Most importantly, it is illegal under the United States Constitution,” Hecht said during his State of Judiciary in Texas, which he delivered to the Texas Legislature at the Capitol on Wednesday, February 1, 2017.
Hecht is also active in the Court’s efforts to assure that Texans living below the poverty level, as well as others with limited means, have access to basic civil legal services, according to the Supreme Court’s website.
TRANSITION COMMITTEE ON CRIMINAL JUSTICE
A comprehensive study prepared by the City of Houston and published on March 1, 2016, titled “Mayor Sylvester Turner, Transition Committee on Criminal Justice”, found that poor residents in the nation’s fourth largest city were being unfairly treated. This is a serious issue that affects economically-disadvantaged Texans statewide,” Canales noted.
The Transition Committee on Criminal Justice also reflected that “when people receive traffic citations or fine-only misdemeanor citations, the economically well off can easily just pay the fine and be done with the process.
“From going to various pay centers around the city, or using a 24-7 payment machine in the court building, or paying online, or at the courthouse, or by mail, resolving one’s debt to the court is a trivial annoyance for the well off—an annoyance that still stands as an insufficient deterrent to dangerous driving,” the Transition Committee on Criminal Justice continued.
“The poor, however, face great hardships when citations result in fines. State law requires judges to account for indigence in setting punishment; judges can waive the fine and court fee and offer alternatives like community service, reduction of fines, and fine waivers for poor defendants. However, data suggests these alternatives are infrequently offered,” the report further found.
Some examples of Class C misdemeanors in Texas include:
• Bail jumping;
• Criminal trespassing;
• Disorderly conduct;
• Driving under the influence of alcohol by a minor;
• Insufficient funds check less than $20;
• Leaving a child in a vehicle;
• Minor in possession of alcohol;
• Minor in possession of tobacco;
• Most traffic tickets;
• Petty theft less than $50;
• Possession of alcoholic beverage in a motor vehicle;
• Possession of drug paraphernalia;
• Public intoxication; and
• Simple assault.
The House Research Organization (HRO), which is the nonpartisan research arm of the House of Representatives, produced a report on the background, pros and cons of HB 351, which was provided to all state representatives on Wednesday, March 22, 2017, when the bill was first heard and debated by the lawmakers.
The HRO bill analysis focused on HB 351 as it was approved by the House Committee on Criminal Jurisprudence on Monday, March 13, 2017. The following changes, known as amendments, were added to the bill, and accepted by Canales, when it was considered by the full House of Representatives on Wednesday, March 22, 2017:
• An amendment by Murr, one of the joint authors of HB 351, was added to make sure that if a defendant fails to do their community service, the amount of the fine or cost would be reinstated and due. It also makes clear that a defendant could still be required to pay an administrative fee for the administration of the defendant’s community service; and
• An amendment by Rep. Harold Dutton, D-Houston, changes the definition of child from “17 and under” to “18 and younger” so that under certain conditions, an 18-year-old is considered a juvenile and not an adult.” Dutton, who serves as Chair of the House Committee on Juvenile Justice and Family Issues, through his amendment, changes a portion of Article 45.058 of the Texas Code of Criminal Procedure.
Not including the amendments by Murr and Dutton, the HRO bill analysis provided the following background for HB 351 as it was presented to the full House of Representatives on Wednesday, March 22, 2017:
Making judicial determinations of indigence at initial sentencing Criminal Jurisprudence — favorable, without amendment
7 ayes — Moody, Hunter, Canales, Gervin-Hawkins, Hefner, Lang, Wilson
For — Margaret “Peggy” Cook and Chas Moore, Austin Justice Coalition; Ted Wood, Harris County Public Defender’s Office; Mary Mergler, Texas Appleseed; Emily Gerrick, Texas Fair Defense Project; Haley Holik, Texas Public Policy Foundation; Chris Howe;
(Registered, but did not testify: Nicholas Hudson, American Civil Liberties Union of Texas; Goodman Holiday, Austin Justice Coalition; Charles Reed, Dallas County Commissioners Court; Jesse Ozuna, City of Houston Mayor’s Office; Kathryn Freeman, Texas Baptist Christian Life Commission; David González, Texas Criminal Defense Lawyers Association; Kathy Mitchell, Texas Criminal Justice Coalition; Deanna L. Kuykendall, Texas Municipal Courts Association; Rachel Malone)
Against — None
Code of Criminal Procedure, art. 43.09(f) provides that a judge may assign community service to a criminal defendant who is unable to pay the court fines or costs. For a defendant who defaults on fines or costs, art. 43.091 allows a judge to waive all or part of the fines or costs assessed if the defendant is indigent or under the age of 17 and alternative methods would yield undue hardship to the defendant.
HB 351 would allow judges to assess community service in lieu of fines or court costs at initial sentencing or any subsequent time regardless of whether the defendant had defaulted on assessed fees or costs.
A judge could waive all or part of the fines or costs assessed without first waiting for the defendant to default.
The bill would take effect September 1, 2017.
HB 351 would clarify the intended purpose of current law, which is that judges should consider criminal defendants’ ability to pay fines and court costs before sentencing them. Currently, in some circumstances an indigent criminal defendant must default before the court rules that the individual is truly unable to pay. This bill would help put the justice system’s time and resources to more efficient use by determining indigence at the initial sentencing, rather than waiting for the defendant to default, possibly get arrested, and come back before the judge again.
Local governments would not lose revenue as a result of this change and could save money by avoiding the costs of housing and feeding in jail those people who could least afford a disruption in their ability to earn.
This bill could reduce indigent defendants’ apprehension about dealing with the court system by addressing their inability to pay fines or court costs earlier in the process. Many indigent defendants are afraid to go to court, either because of work and family obligations or because they do not think they will be able to afford whatever they are asked to pay. This can result in further criminal sanctions that can be more severe than the initial charge, leading to even more involvement in the criminal justice system.
Concerns about a negative impact on the justice system are misplaced. The bill simply would clarify that indigent defendants are protected under state law from confinement solely for their inability to pay a fine without first being provided a realistic alternative.
HB 351 is unnecessary because under current law when indigent defendants are unable to pay a fine, in most cases they can explain their situation to a court and the court will work with them.
The criminal justice system relies primarily on fines to deter low-level offenses. Even incremental changes could contribute to a culture in which there is decreased incentive to comply with the law. Localities also could lose money used to help cover the costs associated with some convictions.
Also according to the bill analysis by the House Research Organization of Zaffirini’s bill, which was added as the amendment to Canales/Hinojosa’s HB 351, these are the highlights of her addition:
HB 351 revises provisions dealing with courts’ procedures to assess fines and costs for criminal defendants who are indigent or unable to pay the amounts. The bill would make other changes, including revising requirements for notifying defendants about those procedures and assessments and expanding courts’ options for imposing community service.
The bill would generally take effect September 1, 2017, and would apply only to offenses committed on or after that date. Several provisions dealing with sentencing proceedings would apply to proceedings that commenced before, on, or after the bill’s effective date. The bill would take effect only if an appropriation for it was included in the general appropriations act.
IMPOSING, WAIVING COURT FINES, COSTS
HB 351 would allow courts, including justice and municipal courts, to impose fines and costs at the punishment stage of a case in which the defendant entered a plea in open court only if the court determined that the defendant had sufficient resources or income to pay the fines and costs. To make the determination, courts would have to consider the defendant’s financial history and other relevant information.
The bill would revise provisions dealing with when and how courts, including justice and municipal courts, may waive payment of fines and costs. Defendants no longer would have to be in default for the fines and costs to be waived. Currently, fines and costs may be waived if a defendant is indigent, and the bill would allow waivers for those with insufficient resources or income to pay fines or costs. Courts would be allowed to waive fines and costs if the waiver was in the interest of justice, instead of also having to make findings related to indigency, resources, and hardships.
CAPIAS PRO FINE
Courts, including justice and municipal courts, would be prohibited from issuing a capias pro fine to bring a defendant to court for a defendant’s failure to pay a judgment for fines and costs unless the court held a hearing on the defendant’s ability to pay and certain conditions were met. The defendant would have to have failed to appear at the hearing or, based on evidence presented at the hearing, the court would have to make certain determinations about the defendant’s good faith efforts to pay the fines and costs and his or her indigency. The court would have to recall a capias pro fine if the defendant voluntarily appeared and resolved the amount owed. These provisions would apply to capias pro fines issued on or after the bill’s effective date.
ARREST WARRANTS BONDS IN JUSTICE AND MUNICIPAL COURTS
Justice and municipal courts would be prohibited from issuing arrest warrants for defendant’s failure to appear in court, including failure to appear after a cite-and-summons, unless certain conditions were met.
A warrant could be issued only if the defendant was given notice that included specific information outlined in HB 351, including information about alternatives to the full payment of fines and costs.
Defendants who got the notice would be able to request an alternative court date. An arrest warrant would have to be withdrawn if a defendant voluntarily appeared and made a good faith effort to resolve the a warrant.
The bill would revise provisions dealing with justice and municipal courts issuance of bonds, which currently authorize these courts to require defendants to give bail to secure their appearance in court. Instead, courts would be authorized to give defendants personal bonds and could require bail bonds only under certain circumstances. These courts could require bail bonds, sureties, or other securities only if the defendant failed to appear as required and the court determined that defendant had sufficient resources or income to give a bail bond or that a surety or other security was necessary to secure a defendant’s appearance in court.
Courts would have to reconsider the requirement for the bail bond if 48 hours after requiring the bond, the defendant had not given the bond. In these situations, the court would presume the defendant did not have sufficient resources or income for the bond and could require a personal bond. Defendants could be held in custody if they refused to give a personal bond or, except for the circumstances established by the bill, refused to give a bail bond. The bill would prohibit courts from assessing a personal bond fee when requiring a defendant to give a person bond.
These provisions would apply only to bonds executed on or after the bill’s effective date.
NOTICE ABOUT ALTERNATIVES TO FULL PAYMENT
The bill would amend several provisions to require that defendants be given information about alternatives to the full payments of fines and costs, if an individual is unable to pay. HB 351 would require information about such alternatives to be on citations that under some circumstances may be issued by peace officer issue in lieu of an arrest. The information about alternatives to full payments also would have to be sent to defendants with certain notices about the disposal of fine-only misdemeanors after a guilty or no contest plea made through the mail.
HB 351 would expand what must be in a notice that entities collecting unpaid debts for counties and cities send to defendants to include a statement that if the person was unable to pay the amount that was acceptable to the court, the person should contact the court about alternatives to full payment.
COMMUNITY SERVICE OPTIONS
The bill would expand options for court- ordered community service. Courts could order community service through attending a work and job skills training program, preparatory classes for the high school equivalency exam, or similar activities. The bill also would allow community service to be done for religious organizations, neighborhood associations, or educational institutions. Similar provisions would be applied to community service ordered by justice and municipal courts for certain juvenile defendants to satisfy fines and costs.
HB 351 would revise provisions granting immunity from liability to certain entities concerning labor performed by inmates. The immunity would be extended to entities that accepted defendants for community service and would apply to the performance of community service.
HB 351 contains several other provisions, including ones about discharging fines with jail time and work and Transportation Code provisions dealing with registering vehicles and denying driver’s licenses.
RATES FOR DISCHARGING FINES WITH JAIL, WORK
The bill would raise the rates at which certain defendants are credited for jail time and labor at certain work programs to discharge fines and costs.
REFUSAL TO REGISTERING VEHICLES, DENYING DRIVER’S LICENSE
The bill would amend Transportation Code provisions that allow counties and the Texas Department of Motor Vehicles (TxDMV) to refuse to register vehicles if the owner owes the county past due fines or fees or has failed to appear in a court for a criminal proceeding. Information about past due fines and fees related to a crime would expire two years after the information was provided to the county or TxDMV.
The information could not be used after that date to deny a vehicle registration. Information about other fines or fees that became past due during that same two-year period could not be used to refuse to register a vehicle before or after the two years. The bill would add a waiver as a way to resolve the charges.
Justice and municipal court judges would be authorized to waive a currently authorized administrative fee that may be imposed by a county in these cases.
HB 351 would amend several Transportation Code provisions about the denial of the renewal of a driver’s license by the TxDMV based on a report from a city or county that a person failed to appear in a court or failed to pay court fines and costs. These include provisions relating to when TxDMV may not continue to deny a license.
The bill would revise the conditions under which persons who fail to appear or who fail to pay court fines and costs must pay a $30 administrative fee to TxDMV. In the case of those who fail to pay court fines or costs, persons determined by a court to be indigent would not have to pay the fee, and the bill would establish conditions under which a person would be presumed to be indigent. The bill would expand the conditions under which persons who fail to appear in a court would not be required to pay the fee to the department.
HB 351 would revise the way courts may handle low-income defendants who cannot pay court costs and fines so that they could be held accountable in a fair way that would not further a cycle of debt and involvement with the criminal justice system. Many courts in Texas already implement provisions of the bill, but HB 351 would export these best practices statewide.
Currently, when low-income Texans do not have the ability to pay court fines and costs assessed for traffic tickets and other low-level, fine-only offense, they can become trapped in a cycle of debt, arrest warrants, jail time, license suspensions, and more. This can result in job losses and harm to family and educational obligations. While current law has provisions for handling defendants who are indigent, the timing of those provisions, lack of knowledge about the criminal justice system, and apprehension about dealing with the court system can result in the fines and costs being assessed and then not being paid. SB 1913 would address these issues by giving courts more options for dealing with these defendants and by providing defendants information about alternative ways to pay their debts and resolve their cases.
The changes in HB 351 would increase compliance with the law, which is intended to consider a criminal defendant’s ability to pay fines and costs. This could increase payments of fines and would reserve criminal justice resources for other cases.
The bill would make several changes so that a person’s ability to pay court costs and fines were considered up front and throughout the criminal justice process. Judges would be required to determine that a person had the resources to pay court fines and costs before imposing them. This would help put the justice system’s time and resources to more efficient use by determining indigence early in the process, rather than waiting for the defendant to default on something he or she never had the ability to pay, possibly leading to arrest and triggering other consequences. The bill only would require that a judge inquire about resources, not that a proceeding be held.
Courts would receive additional tools to satisfy costs and fines, including more options when waiving fines and costs. However, judges would retain their discretion in making such determinations. The bill would expand community service options as a way for defendants to take care of their responsibilities. The bill would require standard language in notices from courts so that defendants knew there were non-monetary options to satisfy fines and costs.
HB 351 would encourage defendants to come to court to clear up traffic tickets and other obligations by prohibiting arrest warrants for failure to appear unless certain conditions were met and requiring arrest warrants to be withdrawn upon voluntary appearance and a good faith effort to answer to the court. The bill also would require courts to have a hearing before issuing capias pro fines so that defendants had a chance to explain their situation and could receive alternatives to paying fines and costs. Other changes would encourage justice and municipal courts to require personal bonds of defendants, rather than bail bonds, so that defendants are not kept in jail because they could not pay fees and costs.
Other provisions of the bill would focus on helping defendants keep driving legally even if they could not pay court fines and costs, allowing them to maintain work, school, and family obligations.
Under current law, in most cases, indigent defendants can explain to a court that they are unable to pay fines, and the court normally will work with them and may order community service. Even incremental changes to this system could contribute to a culture in which there was decreased incentive to comply with the law.
HB 351 could impose burdens on some courts. For example, the bill’s requirement for courts to make an up-front determination that a defendant had sufficient resources to pay fines and costs could result in courts having to hold proceedings in all cases to make the determinations.
The bill’s allowance for courts to waive fines and fees in the interest of justice could give judges too much discretion in these cases. It would be better to outline or define situations that would allow such a waiver.
The Legislative Budget Board’s fiscal note estimates that bill would have an indeterminate cost to the state.
For more on this and other Texas legislative news stories which affect the Lower Rio Grande Valley metropolitan region, please log on to Titans of the Texas Legislature. Desiree Castro contributed to this article. Rep. Terry Canales, D-Edinburg, represents House District 40 in Hidalgo County, which includes portions or all of Edinburg, Elsa, Faysville, La Blanca, Linn, Lópezville, McAllen, Pharr and Weslaco. He may be reached at his House District Office in Edinburg at (956) 383-0860 or at the Capitol at (512) 463-0426.