Chief Justice Wallace B. Jefferson, Jennifer Cafferty, and David Slayton 2013-08-27 03:07:30
WHEN THE 83RD LEGISLATURE CONVENED IN JANUARY 2013, THE HEADLINES DECLARED THAT THE SESSION WOULD FOCUS ON EDUCATION, TRANSPORTATION, ECONOMIC DEVELOPMENT, AND WATER AS THE PREEMINENT PUBLIC POLICY ISSUES. Nevertheless, the Judicial Council, which is the policymaking arm of the judiciary, was determined to improve the administration of justice. The council passed a series of resolutions seeking major reforms in electronic filing, juvenile justice, judicial compensation, and other big-ticket items. The resolutions were only the beginning of an intense campaign to educate the legislative and executive branches on these issues. So we traveled through the “Hightower Tunnel” numerous times each week. We testified, we cajoled, we dispelled false rumors, we marshaled data. We met with senators and representatives, stakeholders, legislative staff, the governor’s office—anyone who would listen. And the effort was bipartisan. The bills were authored and sponsored by Democrats and Republicans. And many of them passed with unanimous support in both chambers. The following is a brief description of the results of those efforts. JUVENILE JUSTICE1 In his 2013 State of the Judiciary speech, Chief Justice Wallace B. Jefferson condemned the practice of issuing approximately 300,000 non-traffic tickets per year to children for minor misbehavior in our schools. Chief Justice Jefferson called for, and the Texas Legislature passed, sweeping changes to address student ticketing. Senate Bill 393 prohibits law enforcement from issuing citations to children for “school offenses.”2 Instead, it authorizes school districts to implement graduated sanctions or refer a child to a diversion program. If a child fails to comply with graduated sanctions or the diversion program, the school may file a criminal complaint. S.B. 393 requires a court to dismiss any truancy complaint that omits a truancy prevention statement. The bill also prohibits the prosecution of children younger than: (a) 10 for any fine-only misdemeanor, and (b) 12 for disruption of class, disruption of transportation, and most disorderly conduct offenses. The bill creates a refutable presumption that children between ages 10 and 15 are incapable of committing most fine-only misdemeanors or violations of municipal penal ordinances. It also requires a court to dismiss a fine-only misdemeanor or violation of municipal penal ordinance prosecution against a child who has a mental illness or developmental disability. Subsequent prosecutions for these offenses against that child would be referred to a juvenile court. S.B. 393 provides sentencing flexibility as well. A judge may allow a child convicted of a fine-only misdemeanor to elect community service or tutoring in lieu of paying a fine and court costs. The court may also waive payment of the fine and costs. E-FILING Last December, the Texas Supreme Court ordered that attorneys electronically file documents in all civil cases (other than juvenile cases in trial-level courts) on a staggered implementation schedule.3 The court’s order requires that all attorneys e-file through a new statewide web portal known as TexFile. House Bill 2302 creates a civil filing fee and a criminal court cost to fund the TexFile portal. The civil filing fee will be $10 in justice courts and $20 in all other courts. The fee is to be charged upon the filing of a petition or other original document in a case and on the filing of certain other documents such as counterclaims. The criminal court cost will be $5, assessed upon conviction of an offense in a district court or county-level court. There is no criminal court cost in the justice and municipal courts to support e-filing. These fees go into effect Sept. 1, 2013, and are intended to replace the “toll-road” fee-per-transaction funding model. H.B. 2302 also allows counties to continue to assess a $2 fee on every e-filing transaction so that counties may recoup their costs associated with e-filing. This fee goes into effect on Jan. 1, 2014. E-filing through the TexFile portal under this new fee structure should reduce the cost of electronic filing and service by up to 94 percent in civil cases.4 NEW COURTS In the 83rd legislative session, the Legislature created four new district courts, a statutory probate court, two county courts at law, and Texas’s first multicounty court at law: H.B. 3153 moved Leon County from the 12th District Court to the 369th District Court. It also removed Waller County from the 155th District Court effective Jan. 1, 2014. As part of the creation of the 452nd District Court, the bill moved Bandera County from the 216th District Court to the 198th District Court, and removed Edwards, Kimble, McCulloch, Mason, and Menard counties from the 198th District Court. McCulloch and Menard counties also move from the 7th Administrative Judicial Region to the 6th Administrative Judicial Region. TRANSFER OF DISTRICT COURT CASES H.B. 1875 prohibits one district court from transferring a case to another district court without the receiving court’s consent with one exception: A district court must transfer a case concerning the parent-child relationship to the court handling a related marital dissolution case. CONSTITUTIONAL CHALLENGES S.B. 392 requires a party to notify the court clerk, at the time of filing, if the document includes a constitutional challenge to a Texas statute. If the attorney general is not a party or counsel in the suit, the clerk must then notify the Texas Office of the Attorney General of the party’s challenge. A standard form for notifying the clerk of a constitutional challenge will soon be available on the Office of Court Administration’s and the local courts’ websites. LAWS AFFECTING ALL COURT COSTS S.B. 390 repeals Texas Government Code Section 51.607(d), thereby mandating that all court costs and filing fees become effective on Jan. 1 the year after they were enacted. CIVIL COURT COSTS COLLECTIONS H.B. 2021 authorizes counties and municipalities to hire an attorney or vendor to collect unpaid court costs on civil cases more than 60 days overdue. It also allows the attorney or vendor to collect a fee of up to 30 percent to compensate the attorney or vendor who collects the debt. CRIMINAL FINES, COURT COSTS, AND COMMUNITY SUPERVISION FEES Effective June 14, 2013, S.B. 389 requires that all court costs be assessed based upon the date of conviction/disposition, not the date of the offense. S.B. 391 provides that a defendant’s obligation to pay court costs is independent of his community supervision period. Therefore, a defendant remains obligated to pay any unpaid fine and court costs even after the defendant completes his period of community supervision. EXPUNCTIONS AND NONDISCLOSURE ORDERS S.B. 107 prohibits a court from disclosing to the public any information contained in the court record that is the subject of a final nondisclosure order issued for a person who was placed on deferred adjudication or community supervision and subsequently received a discharge and dismissal. Previously, court records were not covered by the nondisclosure statute. S.B. 107 updates the procedures for requesting an order of nondisclosure by permitting a person to petition the court in person, electronically, or by mail. Nondisclosure applications will soon be available on both the Office of Court Administration’s and local county and district clerks’ websites. CONFIDENTIALITY OF CRIMINAL RECORDS OF CHILDREN IN FINE-ONLY MISDEMEANOR CASES Under current law, criminal records of children (age 16 and under) in fine-only misdemeanor cases in the justice and municipal courts are confidential in only limited circumstances. To be confidential: (1) the case must be a non-traffic case; (2) the child must have been convicted (deferred dispositions are not convictions); and (3) the judgment must have been satisfied. S.B. 393, effective Sept. 1, 2013, expands confidentiality to deferred disposition situations that ultimately result in dismissal. Separately, H.B. 528 (effective Jan. 1, 2014) expands the confidentiality provisions even further to all cases in which a child is charged. This would essentially make all records of these criminal cases (other than traffic cases) confidential. Because there is some question as to whether the foregoing provisions of these two bills can be harmonized, the Office of Court Administration is seeking an attorney general opinion on the matter.5 JUDICIAL COMPENSATION The Legislature passed a 12 percent increase in judicial compensation, partially implementing the Judicial Compensation Commission’s 21.5 percent recommended pay increase. Texas judges had not received a raise since 2005. INDIGENT DEFENSE AND CIVIL LEGAL AID FUNDING The Legislature restored some funding to the Indigent Defense Commission but did not provide a sufficient increase to “close the gap” between state and local funding of indigent defense funding. The state maintained general revenue funding for civil legal aid at 2012-2013 levels. In addition, H.B. 1445 expands the types of cases where a monetary recovery by the attorney general can be credited to basic civil legal services and increases the cap on those recoveries. JUDICIAL BRANCH CERTIFICATION COMMISSION Effective Sept. 1, 2014, S.B. 966 consolidates the Court Reporters Certification, the Guardianship Certification, the Process Server Review and the Licensed Court Interpreter Advisory boards and creates the Judicial Branch Certification Commission to oversee these judicial professions. This bill will result in significant efficiencies for the professions and the Office of Court Administration. INTERIM STUDIES S.B. 1908 charges the Office of Court Administration with identifying each statutory law imposing a court fee or cost and determining whether the charge is necessary to accomplish its stated statutory purpose. It also requires the Texas Legislative Council to recommend to the Legislature statutory revisions where costs and fees were identified as unnecessary. S.B. 1080 requires the Office of Court Administration to study constitutional county court judicial compensation. By Nov. 1, 2014, the office must report on the adequacy and appropriateness of the $15,000 supplemental compensation provided by the state to each constitutional county court judge who serves a county without a county court at law judge. H.B. 2772 creates an interim committee to study judicial selection. The committee must consider the fairness, effectiveness, and desirability of: (1) partisan elections; (2) other states’ methods of selecting judges; and (3) the relative merits of certain alternative methods including lifetime appointment, appointment for a term, appointment for a term followed by either a partisan election or a nonpartisan election, a nonpartisan retention election, or a nonpartisan retention election for incumbents. NOTES 1. All bills are effective Sept. 1, 2013, unless otherwise indicated. The Texas Judicial Council’s full report on bills affecting the judiciary can be found at www.courts.state.tx.us/tjc/legislative-archiveinfo.asp. 2. School offenses are defined as offenses committed by a child enrolled in a public school that is a Class C misdemeanor other than a traffic offense and is committed on property under the control and jurisdiction of a school district. 3. See Misc. Dkt. No. 13-9092 available at http://www.supreme.courts.state.tx.us/miscdocket/13/13909200.pdf. 4. Assuming 10 documents filed using the TexFile portal and no county transaction fee. 5. See Attorney General Request RQ-1136-GA. WALLACE B. JEFFERSON is the chief justice of the Supreme Court of Texas. Appointed to the court in March 2001 and elevated to chief justice in September 2004, Chief Justice Jefferson has served as chief justice through five legislative sessions. JENNIFER CAFFERTY is the general counsel for the Supreme Cour t of Texas. A graduate of the University of Texas School of Law, Cafferty was appointed to her role in April 2011. She previously served the court as mandamus attorney and was an associate for four years with Baker Botts, L.L.P., in Austin. DAVID SLAYTON is the administrative director of the Office of Court Administration and the executive director of the Texas Judicial Council. He is a graduate of Texas Tech University (B.A.) and Troy University (M.P.A.), is a fellow of the Institute for Court Management, and is the president of the board of the National Association for Court Management.
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