Monday, March 07, 2016

Muni court judges can waive court costs, DRP surcharges for indigence

College Station municipal court Judge Edward Spillane III had a column in the Austin Statesman titled "Municipal courts working to better serve indigent defendants." Most of what he had to say was fine, but this bit left me scratching my head:
Many people do not realize that when an individual receives a ticket, they are obligated to pay more than just a fine in a case. In fact, on a typical traffic ticket the fine range is $1 to $200 but the court cost, which must be paid first to the state, is $100 on average. The judge only has discretion on the amount of the fine. Even if the judge assesses a fine of $1, a defendant must pay the court costs. 
Grits didn't go to Harvard or get a law degree from the University of Chicago like Judge Spillane, but I know that's not the full story. Court costs CAN be waived for indigent defendants who've defaulted, and should be. As I wrote in the Statesman's comments:
Actually, court costs can be waived for indigence when defendants default. See Sec. 14 of this CLE document from the Texas Municipal Courts Education Center.

The city [of Austin] is currently facing litigation over debtors prison practices and refusing to waive fees for indigent defendants who've defaulted exacerbates that problem.

Maybe one way to prevent indigent defendants from going to jail would be to waive court costs when allowable instead of telling people (falsely) that it's not possible.
For those disinclined to click through to the pdf, Sec. 14 declares that:
Judges may waive court costs in two instances:
  • when teen court is granted; and
  • when the court determines that a defendant has defaulted in payment of a fine and/or costs and that the defendant is indigent and performing community service under Article 45.049, C.C.P., would be an undue hardship. Arts 45.052 and 45.0491, C.C.P.
If a judge waives court costs, the court should document its findings in the order of waiver.
Judge Spillane also obfuscated the courts' role in waiving the Driver Responsibility surcharge for indigent defendants. He wrote: "Besides the mandatory court costs, there are other burdens affecting our courts but not part of our courts. For instance, the state surcharge program requires defendants to pay a surcharge to keep their driver’s license upon conviction of certain offenses." True enough. But what he didn't say is that judges can waive surcharges for indigent defendants, though they rarely do so. Instead, the column implies the issue simply is beyond judges' control.

So in the end, while this column purports to express sympathy for indigent defendants jailed for fines and fees, it poses false justifications for the practice rather than acknowledge the discretion muni judges have to remedy the problem.

Whether muni judges like Spillane just don't know the law or choose to ignore their discretion to assist indigent defendants, Grits cannot say. But I do know they have more power to confront the situation than was implied in this column.


Anonymous said...

I've seen plenty of muni court judges waive costs and surcharges for indigence. The catch is that the defendant needs to show up to court to discuss this. Many of the indigent folks I work with have never even needed to appear before the judge so long as they show up and speak to someone at the court before the court date on the ticket. No sure what Spillane is talking about. Sounds like he needs to go to the judge's conference and actually pay attention.

Shantanu Sinha said...


Great informative post.
Yeah people generally dont show up before the judge. They manage to solve up their problem before the ticket date.
Generally they are afraid of showing in front of the judge.

Thanks for sharing this among us.

Shantanu sinha


I routinely practice in Williamson County, and the County Court at Law judges always seem to waive surcharges for DWLI's, based upon indigency, especially if the person is represented by appointed counsel. It's a start, and reflective of the judiciary getting tired of the surcharge fiasco.
If you want something to really lobby against, try the mandatory 180 day driver's license suspension for a POM. That really needs to go.

Ed Spillane said...

I agree that fines and court costs can and should be waived if a defendant is indigent and cannot perform community service. I mentioned that in the sentence before the quoted paragraph but you make a good point that it should be emphasized and taught and communicated to defendants. The point of the quoted paragraph is that defendants face more than just fines: court costs and possible surcharges. I appreciate your attention to the need for us as judges to use all our tools. Judge Ed Spillane

Anonymous said...

I remember reading that it is unlawful to incarcerate an American National for debts, am I mistaken?

Anonymous said...

Anon 1:54, it's unlawful in incarcerate for private debt.

Gritsforbreakfast said...

Thanks for your comment, Judge Spillane, that judges should use all their tools was exactly my point. Of course, it's not that you can only waive fees if an indigent person is "unable to perform community service," according to the TMCEC, but simply when a judge finds community service would be an "undue hardship," which is a less stringent standard than "unable to perform." It's a hardship if, in order to perform community service, you'd have to miss work or couldn't pick your kid up from school (and up to the judge whether it's an "undue" one), but such a person wouldn't be "unable" to do it. I thought your language expressed more limits on the judge's discretion than appears to be the case from the TMCEC materials.

@ the first anon, I asked DPS for an update on how many people have had their surcharges waived by judges. When I last asked them, the number was de minimus, but maybe that tool is used more often now.

@1:54, as a practical matter the government can and will jail you if you don't pay Class C fines. I agree with 2:59 that you can't be incarcerated for private debt.

Anonymous said...

Question, there has been a lot of talk about surcharges being a second punishment for the same crime. how are court costs any different?

Anonymous said...

I still get agitated when I recall the lack of publicity for the surcharge amnesty program. I learned of it after stumbling across your blog. There were four months left when I published a column in the local newspaper telling folks with surcharges to contact me. The largest surcharge total I assisted one person with was over $8000!
Again, via your blog, I learned of the indigency program administered by the court - a far less cumbersome (and beneficial) process than the DPS version.
I firmly believe a person needs a valid license and maintaining financial liability when driving our roads. I also firmly believe that the surcharge program prevents those of the lower economic level from ever becoming legal.