Wood weighs in on collections rules for Class C misdemeanors

For years, Ted Wood was the go-to expert on fines and fees at the Texas Office of Court Administration's General Counsel's office; he likely has forgotten more about the topic than most lawyers will ever know. Now he's an assistant public defender in Harris County. Grits asked Ted's opinion on the recent letter by Judge John Bull, highlighted in this post, and reforms being debated aimed at reducing burdens from Class C fines and fees on indigent defendants. He responded thusly:

From Ted Wood, Assistant Public Defender, Harris County
Here are my thoughts on: (1) Judge Bull’s letter; (2) the Buzzfeed article about Judge Bull’s letter; and (3) your analysis of the letter and the article in your Grits column of April 21, 2016.  You can consider this to be “on the record.”

FIRST, you have identified the main problem.  The main problem is Article 45.0491 of the Code of Criminal Procedure which reads as follows:

A municipal court, regardless of whether the court is a court of record, or a justice court may waive payment of a fine or costs imposed on a defendant who defaults in payment if the court determines that:

(1)    the defendant is indigent or was, at the time the offense was committed, a child as defined by Article 45.058(h); and
(2)    discharging the fines and costs under Article 45.049 [i.e., discharging the fines and costs by performing community service] or as otherwise authorized by this chapter would impose an undue hardship on the defendant.

There is a parallel statute that you did not mention.  The parallel statute is Article 43.091 of the Code of Criminal Procedure.  This statute deals with courts other than municipal courts and justice courts.  In other words, this statute deals with district courts, statutory county courts, and constitutional county courts.  The language of this statute is almost identical to Article 45.0491 discussed above.  Article 43.091 is set out below:

A court may waive payment of a fine or cost imposed on a defendant who defaults in payment if the court determines that:

(1)    the defendant is indigent or was, at the time the offense was committed, a child as defined by Article 45.058(h); and
(2)    each alternative method of discharging the fine or cost under Article 43.09 or 42.15 [discharging fine and costs through the performance of community service] would impose an undue hardship on the defendant.

As you pointed out in your analysis, “judges don’t have authority to declare them [defendants] indigent, according to that reading of the law.”  I might add this: “that reading of the law” is correct.  Judges may not waive court costs at sentencing.  Rather, judges may only waive court costs once a defendant has been ordered to pay court costs and then defaults on that obligation. Also, judges may not authorize a defendant (other than a child) to perform community service until a defendant has been ordered to pay court costs and has defaulted on that obligation.

I am in 100% agreement with your following statement:

The Legislature could help things a lot by deleting the four above italicized words [who defaults in payment] from the statute, clarifying that muni judges can waive fines and fees for indigence at sentencing and don’t have to wait until the indigent defendant has failed to pay.

Your idea needs to be expanded to delete those four words in both the statutes I set out above so that all judges (not just municipal judges) can waive fines and fees for indigence at sentencing.  The law also needs to be changed to permit judges to order defendants to perform community service (in lieu of paying a fine) at sentencing. 

This is currently permitted for children. See Article 45.058(h) referenced in both statutes set out above.  For example, one of my sons pleaded guilty to a speeding violation in the Leander Municipal Court when he was sixteen years old.  He asked to be able to perform community service instead of paying the fine and court costs because he did not have the $165 that was required.  The judge, appropriately, allowed him to perform community service which my son did go on to perform.  This was a totally appropriate action by the judge.  But the judge would not have been able to let my son do this if my son had been one year older (17).  This is because this type of action is only permitted in cases involving children – not adults.

So I am wholeheartedly with you on getting the statute changed. 

SECOND,  I am a member of the advisory committee to the Judicial Council along with Judge Bull, Judge Spillane, and several others.  We have been tasked with proposing changes to the current Collection Improvement Program rules.  We have not been tasked with suggesting legislation.  According to your quote of Judge Spillane, he said something about “creating legislation.”  I think this is exactly what needs to be done – exactly as you have suggested and exactly as Judge Spillane has said.  But this is not what the advisory committee has been asked to do.  Rather, the advisory committee has been asked to change the collection program rules.  I don’t think changes to the collection program rules really solve any problems.  The statutes still don’t allow for judges to waive court costs and that is what we need to do to solve the problem.  As Judge Spillane said (as stated in your article), “judges need to be free to exercise proper discretion by assessing alternative punishments like community service or waiver of fines for indigent defendants.”  Legislative changes are going to be necessary to give judges this freedom.

The members of the advisory committee are to provide suggested responses to the committee chair (Justice of the Peace Bill Gravell of Williamson County) by April 29th.  (Judge Gravell is also a member of the Texas Judicial Council.)   I have not yet written out my response – maybe I will just send in this letter.  In any event, I expect to say that what we need is not so much a reworking of the Collections Improvement Program rules as a change to the statutes as described above.

THIRD, I share Judge Bull’s feeling that courts should not exist to bring in revenue.   Courts should not, to quote Judge Bull, “be viewed as ‘cash cows’ as opposed to places where people can receive a fair and impartial hearing on their cases.” But, with all due respect to Judge Bull, I think his broadside against the Office of Court Administration (OCA) is misdirected.

The Legislature had directed OCA to operate a Collections Improvement Program (CIP). See Article 103.0033.  OCA is only doing what the Legislature has required.  I strongly disagree with Judge Bull’s suggestion that OCA’s Collections Improvement Plan is “encouraging courts to jail people who don’t pay.”  Here is what Judge Bull wrote:

In fact, the “analysis” implies that “‘community service” is an option, but “credits for jail time should be limited to cases in which a  defendant refuses to pay or perform community service, but has the ability to do so.”  The language in the analysis could be read in such a way that encourages courts to jail people who don’t pay.

It could?  How can this language be interpreted to encourage courts to jail people who don’t pay?  I understand this language to put a limitation on the situations in which a person can be jailed for non-payment of fines and court costs.  This limitation is precisely in line with Article 45.046(a) of the Code of Criminal Procedure which says:

(a) When a judgment and sentence have been entered against a defendant and the defendant defaults in the discharge of the judgment, the judge may order the defendant confined in jail until discharged by law if the judge at a hearing makes a written determination that:

(1) the defendant is not indigent and has failed to make a good faith effort to discharge the fine and costs; or
(2) the defendant is indigent and:

(A) has failed to make a good faith effort to discharge the fines and costs under Article 45.049; and
(B) could have discharged the fines and costs under Article 45.049 without experiencing any undue hardship.

See also Article 43.03(d) of the Code of Criminal Procedure for the equivalent statute applicable to courts other than municipal courts and justice courts.

The past practices in El Paso that you also discuss in your April 21st article were absolutely wrong.  Defendants were being jailed without regard to the limitations set out in Article 45.046(a).  But OCA is not encouraging this practice.  In fact, OCA is discouraging the practice.  Here, Judge Bull takes a statement from OCA about the limitations on jailing defendants and somehow twists it into an encouragement by OCA that courts jail people who don’t pay.  This is not at all what OCA is suggesting.

I just hate to see OCA and its Collections Improvement Program dumped on.  OCA is not the problem.  The Collection Improvement Program is not the problem.  The problem is that the current statutes do not allow for the waiver of court costs up front.  The problem is also that the current statutes do not allow a judge to order that a person perform community service in lieu of paying fines and court costs up front.  The problem is also that some courts were improperly jailing people.  Again, this improper jailing is not something that OCA and the CIP are advocating – at all.  To the extent that Judge Bull suggests otherwise, I part ways with him.

But my final word is this – although I disagree with parts of Judge Bull’s letter, he is a fine man and an excellent judge.  I look forward to working with him and others on the rules advisory committee.

Ted Wood
Assistant Public Defender
Harris County Public Defender’s Office