State lawmakers on Friday, May 26, 2017, approved House Bill 351 by Rep. Terry Canales, D-Edinburg, which will help do away with a decades-old injustice which results in hundreds of thousands of Texans going to jail every year because they are too poor to pay fines for traffic tickets and other Class C misdemeanors.
Canales said HB 351 represents a “sweeping reform” of the state’s criminal justice system.
“In Texas, at the rate we are 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,” explained the House District 40 lawmaker, who is an attorney. “We have too many Texans statewide who are struggling to pay rent and groceries, then they wind up getting ticketed and getting jailed for the most minor offenses, such as traffic violations.”
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, and other related costs, such as failure to appear in court.
Canales added that taxpayers wind up paying more because through the costs it takes to look after people who are in local jails for petty crimes.
“This whole system of putting poor people in jail has become a convenient cash cow for our government, who want to squeeze money out of indigent Texans,” he said. “HB 351 provides a much better way for minor offenders to pay their debt to society without unjustly putting them behind bars.”
Canales is the primary author of HB 351 while Sen. Juan “Chuy” Hinojosa, D-McAllen, by carrying HB 351 in the Senate, is the primary sponsor of the legislation.
The legislator who files a bill and guides it through the legislative process is the author (also called the primary author). The Senate allows multiple primary authors for each bill or resolution. The House of Representatives allows only one primary author, the house member whose signature appears on the original measure and on the copies filed with the chief clerk.
Both chambers also have coauthors, and the house of representatives has joint authors.
The measure, which won final support in the House of Representatives on a huge, bipartisan vote of 132 Yeas, 11 Nays, and 2 Present, Not Voting, is on the way to the governor for his approval.
HB 351 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.
HB 351 will help clear up confusion in existing 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 would also help 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 the House District 40 state representative.
HINOJOSA: “OUR CURRENT SYSTEM IS COUNTER-PRODUCTIVE”
Hinojosa, also an attorney, agreed with the need for Canales’ legislation.
“Our current system is counter-productive, and it traps people into a cycle of debt when they cannot pay their tickets and other low-level, fine-only citations. Our current practice also leads 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 would be 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 seeks to put the justice system’s time and resources to more efficient use by holding people accountable while saving money and increasing public safety.”
ZAFFIRINI: DISMANTLING “A MODERN-DAY DEBTORS’ PRISON SYSTEM”
Sen. Judith Zaffirini, D-Laredo, was carrying legislation similar to Canales’ HB 351, in a legislative move known as an amendment – after obtaining Canales’ and Hinojosa’s support – was able to add other key provisions to HB 351 that otherwise may have failed because the Texas Legislature was in its final days.
She said HB 351, with the language of her own legislation, Senate Bill 1913, added to the Canales/Hinojosa version, will also help dismantle what she calls a modern-day “debtors’ prison” system.
“For at least four decades the U.S. Supreme Court has dictated that imprisoning a defendant for inability to pay fines denies equal protection and that a person cannot be punished for his or her poverty,” she said. “Despite this, debtors’ prisons persist in our state in jurisdictions that trap low-income Texans in a cycle of debt, license suspensions, arrest warrants and jail time when they cannot afford to pay traffic tickets and other low-level, fine-only citations.”
HB 351, with her amendment, “would reduce the number of persons trapped in this vicious cycle,” Zaffirini said.
Rep. Senfronia Thompson, D-Houston, is the House sponsor of Zaffirini’s SB 1913.
Canales noted the bipartisan help that HB 351 received throughout the legislative process.
“As passed by the House of Representatives, and then approved by the Senate, we drew support from Democrats and Republicans for HB 351, which featured Rep. James White, R-Hillister, who also serves as Chair of the House Committee on Corrections, along with Rep. Eddie Lucio, III, D-Brownsville, who serves as Chair of the House Committee on Rules and Resolutions, Rep. Jeff Leach, R-Plano, and Rep. Andrew Murr, R-Kerville, serving as joint authors,” he said. “As always, Sen. Hinojosa did an outstanding job in the Senate, and I was proud to support and secure House approval for Sen. Zaffirini’s amendment to HB 351 .”
Investigations by the media and governmental entities have found that low-income Texans are jailed frequently for inability to pay traffic tickets, according to Zaffirini.
When they cannot pay their tickets, they lose their driver’s licenses and cannot renew their vehicle registrations, making it illegal for them to drive to work. If they drive to pick up children from school or go to work, they may receive additional tickets for driving without a license and registration, accumulating more fines, court costs, and fees.
“What’s more, when they cannot pay the additional fines or court costs, warrants are issued for their arrest, and they may be jailed for days, weeks or even months. Tens of thousands of people are booked into county jails each year for fine-only offenses alone,” she said. “While in jail, these persons may lose their jobs and housing, jeopardize their families and be driven deeper into poverty.”
As a condition of community supervision, HB 351 also allows a judge to require participation in a pretrial diversion program, said Hinojosa.
Furthermore, HB 351 extends the “Commission to Study Certain Penal Codes” to review criminal offenses outside the penal code and updates the threshold ladder for forgery crimes related to fake checks, money orders and other simple transactions to match the penalty ladder for the rest of Texas’ theft offenses.
Current law designates ‘fake checks’ to be an automatic state jail felony,” Hinojosa said. “This would create consistency and keep non-violent offenders out of Texas state jails.”
HB 351 also addresses 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 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 (http://www.txcourts.gov/supreme/about-the-court/justices/chief-justice-nathan-l-hecht.aspx).
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 entire report is available online at:
The House Research Organization (HRO), which is the nonpartisan research arm of the House of Representatives, provide 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.
Desiree Castro and Will Krueger 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.
Link to Article:https://texasborderbusiness.com/canales-plan-away-debtors-prisons-poor-people-cant-pay-traffic-fines/