What Is A Class "C" Misdemeanor In Texas? What Is The Statute Of Limitations For A Class "C" Misdemeanor In Texas?

What is a Class"C" misdemeanor in Texas?

In Texas, a Class "C" misdemeanor is an offense punishable by fine only. It is classified as a criminal offense, but it is the least serious criminal offense. Generally, citations issued for traffic and other violations, with a date to appear in court at a later time, fall into this category. Although such violations are "fine only" offenses, there may be other consequences. Paying the fine results in a conviction. A conviction on some violations may result in license suspension, higher insurance rates or other unintended consequences.

What is the statute of limitations for a Class "C" misdemeanor in Texas?

In Texas, the statute of limitations for a Class "C" misdemeanor is two years. Be aware that this does not mean that traffic ticket violations and other Class"C" misdemeanors that are two years or older cannot be prosecuted. What it does mean is that if the offense is two years old, and a complaint has never been filed, then it is barred by the statute of limitations, and cannot be prosecuted. The complaint is not the citation issued by the officer. The complaint is a formal sworn document which meets the requirements of Chapter 45, Texas Code of Criminal Procedure. Only the filing of the complaint stops or tolls the statute of limitations. So, if a violation occurs and two years elapse without the complaint being filed, then it is barred from prosecution. On the other hand, If a complaint is filed within two years of the violation date, even if it is filed on the last day of the two year period, then it can still be prosecuted even after two years from the date of the violation.

Are all traffic violations in Texas classified as Class "C" misdemeanors?

No. Not all traffic violations in Texas are classified as Class "C" misdemeanors. Serious traffic violations where there is personal injury, property damage or intoxication involved may be classified as Class "A" or "B" misdemeanors or Felonies and punishable by fines and jail time. Also, automated traffic ticket violations such as red light camera violations are civil instead of criminal, and are therefore not Class "C" misdemeanors.

Charles French was licensed to practice law in Texas in 1991. The majority of his practice includes the Justice of the Peace and Municipal Courts in Houston, Harris County and surrounding counties. You may visit his website by going to:

www.houstonticketdefender.com

Courts Cannot Charge An Insurance Dismissal Fee

Texas traffic courts may legally charge a dismissal fee up to $20.00 for the dismissal of certain violations including expired registration, expired drivers license and expired inspection. A court may not however, charge a dismissal fee for the dismissal of a Failure to Maintain Financial Responsibility (FMFR) violation, more commonly known as a "No Insurance" violation.

ONCE IT WAS OKAY FOR COURTS TO CHARGE THIS FEE

The 70th legislature amended the Motor Vehicle Safety-Responsibility Act to allow courts to charge a $10.00 dismissal fee in cases where the person was unable to produce proof of financial responsibility when requested by an officer, but they were able to subsequently provide adequate proof that they were in fact in compliance with the act, either covered by insurance or by other means permissible under the act.

THE TEXAS ATTORNEY GENERAL

SAID THE FEE WAS UNCONSTITUTIONAL

In 1988, that section of the Motor Vehicle Safety-Responsibility Act allowing courts to charge the $10.00 dismissal fee on financial responsibility cases was declared unconstitutional by The Office of the Attorney General of Texas, Opinion No. JM-917. The Attorney General opined that since the crime is driving without financial responsibility, and not failing to show proof to the officer, charging a dismissal fee to someone who was actually insured amounts to punishing the person for a crime they did not commit, and is therefore, unconstitutional.

THE LEGISLATURE AGREED WITH THE ATTORNEY GENERAL

The Motor Vehicle Safety-Responsibility has since been codified into Texas Transportation Code, Chapter 601. Heeding the advice of the Attorney General Opinion, that the fee is unconstitutional, the legislature correctly chose to omit any provision authorizing courts to charge a fee for the dismissal of financial responsibility cases.

FINANCIAL RESPONSIBILITY CASES ARE DIFFERENT FROM

EXPIRED REGISTRATION, DRIVERS LICENSE AND INSPECTION CASES

In contrast to the financial responsibility dismissal statute, the statutes dealing with the dismissal of expired registration, expired drivers license and expired inspection specifically authorize courts to charge dismissal fees on those type of cases. These fees are not unconstitutional because, unlike financial responsibility cases, the person is paying a dismissal fee for a violation they actually committed which they later remedied by renewal of their registration, drivers license or inspection sticker. These statutes allow the courts some discretion to encourage compliance by allowing a small fee, rather than a big fine, for those violators who come into compliance. Compliance fee would probably be a more appropriate term for these fees.

Since charging a dismissal fee on a "No Insurance" violation is unconstitutional, the legislature has intentionally removed the statutory authority for the courts to do so. Therefore, any court that assesses or charges such a fee is doing so illegally.

Charles French was licensed to practice law in Texas in 1991. The majority of his practice includes the Justice of the Peace and Municipal Courts in Houston, Harris County and surrounding counties. You may visit his website by going to:

www.houstonticketdefender.com

When Good Courts Give Bad Information

We have a right to rely on what our public officials tell us. They owe us the duty to be competent in the areas of information they give to the public. Furthermore, they owe us the duty, if not the courtesy, to make sure that what they tell us is correct. I would prefer that a court clerk tell me "I'm not sure, I'll have to check and get back with you" rather than give me erroneous information off the top of their head. The fact is, when court personnel give wrong information, bad things can and often do happen.

Let me be the first to say that the majority of courts and court personnel that I deal with are both professional and knowledgeable at a level that serves the public well. However, from time to time, I run across some recurring situations whereby a justice or municipal court defendant has been led astray by court personnel. Some of these instances of misinformation have or could have had devastating consequences for the defendant in the case. In many cases the erroneous information could have led to convictions, points on the driving record, hundreds of dollars in surcharges and/or license suspensions. Below, I have listed some of the more common situations I run into.

Although, these are actual situations that I have personally experienced, I will not name the courts, since to do so would unfairly stigmatize them for the deeds a a few bad apples. If you have a situation similar to one or more of those discussed below, then you may want to contact an attorney before you act on the information given to you by the clerk.

The clerk said "Your name is not on the insurance so you'll have to pay the fine."

The question is whether or not you were covered for purposes of the statute when you were issued the citation. The clerk is wrong to automatically assume that you are not covered merely because your name does not appear on the policy or I.D. card you give to them. There are several instances where, even if you do not have insurance in your name, if the car you were driving was covered, then you were your covered for purposes of the law you are charged with violating. It will depend on the insurance company, the policy and whether or not you were excluded as a driver. The best way is to verify it through the insurance company prior to providing the insurance to the court. It is a good idea to get the person's name at the insurance company to whom you spoke.

The clerk said "Your name is on the insurance, but the vehicle is not listed."

The clerk is wrong to automatically assume that you are not covered when you are listed on insurance, but the vehicle you were driving does not appear on the policy or I.D. card you give to the court The insurance I have covers me regardless of whose vehicle I am driving, even if the owner of the car I'm driving does not have insurance on that particular vehicle. Again, the best thing to do is to verify it through the insurance company prior to giving it to the clerk.

Do not automatically assume that you were not covered because either your name or the vehicle is not listed on the insurance. Call the insurance company and know ahead of time whether you were covered before presenting your proof of insurance to the clerk.

Unfortunately, I know people who have relied on what the court clerk told them, and have paid the fine when they were actually covered and the violation should have been dismissed. As a result they were needlessly convicted, incurred license suspensions and hundreds of dollars of surcharges, when in fact, they should not have done so.

If you discover that you actually were not insured at the time of the citation, you may want to contact an attorney of your choice to represent you on the matter.

The clerk said "There is a dismissal fee on the insurance case."

The clerk is wrong. While the court can charge a dismissal fee of up to $20.00 for the dismissal of expired drivers license, expired inspection and expired registration, it cannot do so on Failure to Maintain Financial Responsibility cases where the person actually had insurance at the time they were cited.

I have a client I'll call Joe. Here is what happened.

Joe was pulled over and issued a citation for Failure to Maintain Financial Responsibility (FMFR). He had insurance coverage at the time he was stopped, but did not have proof with him. A week later, he faxed his proof of insurance to the court and called to confirm they received it, which they did. Joe assumed the case had been dismissed, which it should have been.

Joe later discovered that he had a delinquency of $324.00 and a hold on the renewal of his drivers license from the same court to which he previously faxed his proof of insurance. Upon contacting the court, Joe was told that the delinquency and hold on his license renewal were due to his not paying a $10.00 dismissal fee on the insurance case. Joe was told that he would have to pay the $324.00.

Had Joe listened to the clerk and paid the $324.00, he would have been wrongly convicted of FMFR. He would have incurred $260.00 surcharges every year for three years and possibly triggered a license suspension.

Here's why the court was wrong and Joe was right. The court illegally charged Joe a $10.00 dismissal fee for the dismissal of his insurance case. The clerk wrongly assumed there was a dismissal fee on FMFR cases as there are for expired drivers license, expired inspection and expired registration cases. These cases differ from FMFR cases. Expired drivers license, expired inspection and expired registration cases are such that the person actually committed a violation and later fixed them so that they are allowed to pay a dismissal fee for compliance after the fact. In an FMFR case, where the person later shows proof they were covered at the time they were issued the citation, they were never in violation of the law, and therefore forcing them to pay a dismissal fee for a crime they did not commit would be unconstitutional.

Simply put, Joe was illegally assessed a $10.00 fee by the court. The court did not tell him about the fee. Since the fee was not paid, Joe was shown to be delinquent on the fine of $324.00 and a hold was placed on the renewal of his drivers license. We sent a letter putting the court on notice of the error, and the case was dismissed. I wonder how many cases like Joe's have occurred in that court.

The clerk said "He's never appeared, but the case is so old, he just needs to pay it."

The clerk is wrong. If the defendant has never appeared before the court on the charges, the only option is not just paying it. The defendant has the right to post bond, get the cases out of warrant, Pay his OMNI fees to renew his license, get his cases properly before the court again and get a new court date. It does not matter how old the case is. The age of the case has absolutely nothing to do with whether or not he can exercise his rights to do these things. If the defendant simply paid it like the clerk said, the defendant would unnecessarily be convicted and incur all consequences associated with such conviction (License suspension, points, surcharges etc.).

The clerk said "We cannot pull the case from the OMNI system (DPS Failure to Appear Database) until it is disposed of."

The clerk is wrong. By law, once the defendant posts a bond or gives other security to reinstate the case on the docket, the defendant may pay the OMNI fees at that time. The clerk must then send the clearance notice to DPS to take the non-renewal hold off of the license.

If the defendant followed what the clerk said, then they would be deprived of renewing their license until the case was disposed of, possibly months later. I am still surprised at how many clerks, and judges for that matter, do not know this.

While most court personnel I deal with are professional and knowledgeable, there is a possibility of misinformation as to your various options. Court personnel are not supposed to give legal advice. They may inform you of some options regarding your case, but may fall short of informing you about all of your options. You may want to contact an attorney of your choice before acting on your case.

Charles French was licensed to practice law in Texas in 1991. The majority of his practice includes the Justice of the Peace and Municipal Courts in Houston, Harris County and surrounding counties. You may visit his website by going to:

www.houstonticketdefender.com

Red Light Cameras in Texas: Public Safety or Revenue

Please note, that as of June 2, 2019, red light ticket cameras are banned in Texas.  However, the ones currently in operation will be allowed to operate until their contract expires.  Some have contracts that will take several years to expire.

Red light camera tickets, in Texas. herein discussed are civil rather than criminal. They are not Class "C" misdemeanors as are red light citations issued by a police officer.

I attended a seminar a while back, and one of the speakers had played a large role in shutting down these cameras in several California cities. What I gathered from this speaker was two things. First, red light cameras do not make intersections safer. In fact, in some instances, the cameras make intersections more dangerous. Second, the best way to make intersections safer is to lengthen the yellow light cycle.

If the installation of red light cameras is truly about public safety, then we must ask the following:

Since lengthening the time of the yellow light cycle has been shown to make intersections safer, then why wouldn't a city try doing so before deciding whether or not to install red light cameras?

Answer: No cameras, no revenue. Because even if increasing the length of the yellow light proved to make the intersection safer than the installation of a camera, it would not generate revenue, which is what the city wants. The city would have absolutely no interest in conducting a test which would probably prove that anything, other than a red light camera, would make an intersection safer. In fact, the city would have more of an interest in suppressing any such test.

Why isn't community service available to a citizen as a means to pay the fine on a red light camera ticket as it is for tickets issued by an officer?

Answer: Because the city wants money, not community service.

One recurring argument for red light cameras is that the cameras free up police officers from certain traffic stops so that they can address other more important issues. This is ridiculous. Does this mean that the officers will be able to concentrate more on homicide, rape and theft? Of course not. Everyone knows the the traffic stop is a primary tool for law enforcement in the detection of more serious crimes.

The camera company gets a significant share of the money from each ticket generated. Red light camera companies are basically travelling sales shows going from city to city peddling their wares, as are other industries which target local and state governments such as light rail or toll road systems. While some cities have done away with red light cameras, the camera companies keep prospecting cities where they have not yet been. They may be coming to a town near you if they haven not done so already.

Wake up. It is about revenue, not public safety. The cameras are basically a vending machine for for the partnership between the city and the company with the red light camera contract.

Charles French was licensed to practice law in Texas in 1991. The majority of his practice includes the Justice of the Peace and Municipal Courts in Houston, Harris County and surrounding counties. You may visit his website by going to:

www.houstonticketdefender.com

Statute of Limitations on Traffic Tickets and Other Class "C" Misdemeanors in Texas

The discussion here relates to those Texas traffic violations that are classified as Class "C" misdemeanors, and does not include red light camera tickets which, in Texas, are civil rather than criminal matters. 

The statute of limitations on traffic ticket violations and other Class "C" misdemeanors, in Texas, is two years.  Be aware that this does not mean that traffic ticket violations and other Class"C" misdemeanors that are two years or older cannot be prosecuted. What it does mean is that once a violation is two years old, if a complaint has never been filed, then it is barred, and cannot be prosecuted. The complaint is not the citation issued by the officer. The complaint is a formal sworn document which meets the requirements of Chapter 45, Texas Code of Criminal Procedure. 

On September 1, 2009, Texas codified it's then existing two year period of limitation on traffic ticket violations and other Class "C" misdemeanors, into the "statute of limitations".
The 2009 amendments to T.C.C.P. 27.14 and T.C.C.P. 12.02, raise two important questions regarding the status of  the period of limitation on Class C misdemeanors prior to the amendments.  First, whether there was any limitation at all?  Second, if so, what tolled the running of the period of limitation? 


Prior to September 1, 2009, was the officer’s citation sufficient to be considered the complaint for the purpose of tolling the period of limitation?

T.C.C.P, Art. 27.14 (d) provides that the citation may serve as the complaint to which the defendant may plead, or even be tried on, if the defendant properly waives the filing of a formal complaint.  The placement of the “may serve as a complaint” language, under Chapter 27, the Criminal Pleading Statute, would suggest that the legislature intended the use of the citation to serve as the complaint only for the purposes of pleading, and not for the purposes of limitation.  Had the legislature intended for the citation to serve as the complaint for limitation purposes, it would have been placed under Chapter 12, the Limitation Statute.

The language in T.C.C.P. 27.14(d) regarding the citation serving as the complaint, was not changed by the 2009 amendment, and reads exactly the same now as it did prior to September 1, 2009. 

Text of subsection effective until September 01, 2009

(d) If written notice of an offense for which maximum possible punishment is by fine only or of a violation relating to the manner, time, and place of parking has been prepared, delivered, and filed with the court and a legible duplicate copy has been given to the defendant, the written notice serves as a complaint to which the defendant may plead "guilty," "not guilty," or "nolo contendere."  If the defendant pleads "not guilty" to the offense, a complaint shall be filed that conforms to the requirements of Chapter 45 of this code, and that complaint serves as an original complaint.  A defendant may waive the filing of a sworn complaint and elect that the prosecution proceed on the written notice of the charged offense if the defendant agrees in writing with the prosecution, signs the agreement, and files it with the court.

Text of subsection effective September 01, 2009

(d)  If written notice of an offense for which maximum possible punishment is by fine only or of a violation relating to the manner, time, and place of parking has been prepared, delivered, and filed with the court and a legible duplicate copy has been given to the defendant, the written notice serves as a complaint to which the defendant may plead "guilty," "not guilty," or "nolo contendere."  If the defendant pleads "not guilty" to the offense or fails to appear based on the written notice, a complaint shall be filed that conforms to the requirements of Chapter 45 of this code, and that complaint serves as an original complaint.  A defendant may waive the filing of a sworn complaint and elect that the prosecution proceed on the written notice of the charged offense if the defendant agrees in writing with the prosecution, signs the agreement, and files it with the court.

There is no case law, statutory or constitutional authority which supports the notion that the citation may serve as a complaint, for purposes of tolling the period of limitation.  The citation may serve as the complaint only in two limited circumstances: when the defendant is not contesting guilt, and when the defendant waives the right to be charged by sworn complaint. (The Recorder, The Journal of Texas Municipal Courts, Volume 16, No. 3, May, 2007, Pages 8- 9, Item 22, Under Any Circumstances, Can A Citation Serve As A Complaint?, Item 23, Does the Filing of a Citation toll The Statute of Limitations?, Texas Municipal Courts Education Center).  

Prior to September 1, 2009, the Legislature did not consider the citation sufficient to be the complaint for the purpose of tolling the period of limitation.

Brought to the attention of the legislature, prior to September 1, 2009, was the fact that, in many cases, mostly due to a defendant’s failure to appear, complaints were not timely filed by the courts.  Consequently, once the two year limitation period had run, the case was barred from prosecution.  (Resolution of the Texas Judicial Council, Require Complaint to be Filed if Defendant Fails to Appear), (Bill Analysis, S.B. 413, Author’s/Sponsor’s Statement of Intent, 6/4/2009), (The Recorder, The Journal of Texas Municipal Courts, Volume 18, No. 4, August 2009, Pages 6-7, Subject: Mandatory Filing of Complaints Upon Non-Appearance, Texas Municipal Courts Education Center).

Senate Bill 413 amended  T.C.C.P. 27.14(d) to require the courts to toll the period of limitation, by filing the complaint in cases where the defendant fails to appear. The legislative intent, and the subsequent enactment of Senate Bill 413, is proof of the Legislature’s position on the subject in 2009, that the citation did not in fact, toll the period of limitation.  (Bill Analysis, S.B. 413, Author’s/Sponsor’s Statement of Intent, 6/4/2009) (Resolution of the Texas Judicial Council).  The passage of the bill was the legislative remedy to the existing problem resulting from the fact that the citation did not toll the period of limitation. 

The legislature did not add “complaint” to T.C.C.P 12.02 until September 1, 2009.  Doesn’t the omission of “complaint” from the statute prior to September 1, 2009, mean that there was no limtaion on Class C misdemeanors?

Prior to September 1, 2009, T.C.C.P. 12.02 required that an indictment or information be presented within two years from the commission of the offense, but did not mention complaint.

Text of article effective until September 01, 2009

Art. 12.02. MISDEMEANORS.  An indictment or information for any misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward.

S.B. 410, amended Art. 12.02 by adding paragraph (b), requiring that a complaint be presented within two years of from the date of the commission of the offense.


Text of article effective September 01, 2009

Art. 12.02.  MISDEMEANORS.  (a)  An indictment or information for any Class A or Class B misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward.

(b)  A complaint or information for any Class C misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward.


Despite the statute’s failure to mention “complaint” , prior to September 1, 2009, the majority view was that there was a two year period of limitation.  Although, it could be argued that the statute’s failure to mention “complaint” meant there was no limitation, such notion is inconsistent with Texas law, that sets limitations on all but the most serious matters.  The majority view that there was a two year limitation, is further supported by case law.  In the Hoard case, the Court of Criminal Appeals held a complaint in justice court alleging illegal gaming was barred by the two year statute of limitations.  Ex Parte Hoard, 140 S.W.  449, (Tex.Crim.App.  1911).  (The Recorder, The Journal of Texas Municipal Courts, Volume 16, No. 3, May, 2007, Page 9, Item 23, Does the Filing of a Citation toll The Statute of Limitations?, Texas Municipal Courts Education Center),  (Resolution of the Texas Judicial Council, Set Statute of Limitations in Class C Misdemeanor Cases), (Bill Analysis, S.B. 410, Author’s/Sponsor’s Statement of Intent, 6/4/2009).

                                                         SUMMARY                                                                                                                    


The law regarding the two year limitation of actions, for Class C misdemeanors, and tolling thereof, was the same prior to September 1, 2009, as it is now.  The amendments to Articles 12.02, and 27.14, neither took away nor added to what was already the law.  Those amendments merely codified the then existing law on limitation, regarding Class C misdemeanors,  into the current “statute of limitation”. 

The September 1, 2009, codification of the statute of limitation does not mean that there was no period of limitation for Class C misdemeanors prior to September 1, 2009.  The Pre-September 1, 2009, majority view, that there was a two year period of limitation, and that it was tolled by the timely filing of a complaint, is supported by case law.

There is no authority supporting the notion that the citation tolled the period of limitation.
Although T.C.C.P.  27.14(d) mentions the citation serving as the complaint, the legislature’s placement of this provision under the Criminal Pleading Statute suggests that the intent was for the citation to serve as the complaint for the limited purpose of defendant’s pleading, but not for tolling the period of limitation.  

Prior to September 1, 2009, the legislature’s position was that the citation, did not in fact, toll the two year period of limitation for Class C misdemeanors.  That position appears to be shared by Texas Municipal Court Education Center.  Because the citation did not toll the period of limitation, the legislature sought a remedy to fix the recurring problem of barred prosecutions.  The solution was the amendment to 27.14(b) requiring the court to file a complaint when a defendant fails to appear.  The amendment does nothing more than impose a duty on the court to toll the statute of limitation, by filing the complaint, to avoid prosecutions from continuing to become barred after two years. 

The period of limitation for Class C misdemeanors prior to September 1, 2009, was two years. Only the filing of the complaint tolled the period of limitation.  The citation could serve as the complaint in limited circumstances, for the defendant to plead to, but not for the purpose of tolling the limitation period.  The citation has never tolled the period of limitation.

TABLE OF AUTHORITIES

The Recorder, The Journal of Texas Municipal Courts, Volume 16, No. 5, May, 2007, Page 9, Item 23, Does the Filing of a Citation toll The Statute of Limitations?, Texas Municipal Courts Education Center

The Recorder, The Journal of Texas Municipal Courts, Volume 18, No. 4, August 2009, Pages 6-7, Subject: Statute of Limitations in Class C Misdemeanors, Texas Municipal Courts Education Center

The Recorder, The Journal of Texas Municipal Courts, Volume 18, No. 4, August 2009, Pages 6-7, Subject: Mandatory Filing of Complaints Upon Non-Appearance, Texas Municipal Courts Education Center

Ex Parte Hoard, 140 S.W.  449, (Tex.Crim.App.  1911)

T.C.C.P. 27.14(d), Text of article effective until September 01, 2009

T.C.C.P. 12.02, Text of article effective until September 01, 2009

Resolution of the Texas Judicial Council, Require Complaint to be Filed if Defendant Fails to Appear,

Resolution of the Texas Judicial Council, Set Statute of Limitations in Class C Misdemeanor Cases

S.B. 410, 81st Legislature, Regular Session, Effective September 1, 2009

S.B. 413, 81st Legislature, Regular Session, Effective September 1, 2009

Bill Analysis, S.B. 410, Author’s/Sponsor’s Statement of Intent, 6/4/2009

Bill Analysis, S.B. 413, Author’s/Sponsor’s Statement of Intent, 6/4/2009

T.C.C.P. 27.14(d) Text of article effective September 01, 2009

T.C.C.P. 12.02(b) Text of article effective September 01, 2009

Charles French was licensed to practice law in Texas in 1991. The majority of his practice includes the Justice of the Peace and Municipal Courts in Houston, Harris County and surrounding counties. You may visit his website by going to:

www.houstonticketdefender.com

The Life Cycle of the Traffic Case and Other Violations Filed in the Justice of the Peace and Municipal Courts

In Texas, the typical traffic case or other Class "C" misdemeanor starts with the issuance of the citation or notice to appear to the defendant. Your signing the citation is not an admission of guilt, but only a promise to appear and answer the charge. Signing the citation alleviates the need for the officer to take you before a magistrate.

If you think you may want to hire an attorney to represent you in the matter, it is best to do so before the due date on the citation. I sometimes do not take cases once they have been reset or the person has already been to court without me.

When you are charged with a traffic violation, or any other Class "C" misdemeanor in the Justice of the Peace or Municipal Court, there are basically three possible outcomes.

Traffic violations and other Class "C" misdemeanors are disposed of in one of three ways. Like most criminal cases, they are either dismissed, plea bargained or tried. The key is to dispose of the case in a way that best serves your goals. Of course we all prefer dismissals, but this is not always a realistic outcome. Ask yourself the following. In the handling of this matter, what am I trying to accomplish? What interest am I trying to protect? Do I want to keep this off of my record? Do I want my day in court? How strong is my case? What exactly is at stake? These considerations should be discussed with your lawyer.

If I hire an attorney, will my case be dismissed?

For a case to be dismissed, there have to be grounds for dismissal. Another words, the prosecutor must decide that there is some procedural, legal or factual reason that they cannot prove their case and therefore move to dismiss it. If your attorney is on the ball, he or she will pick up on potential flaws in the state's case prior to considering either a plea bargain or going to trial. In the representation of my clients, when I find flaws in the state's case, I either point them out to the prosecutor or file motions and let the judge decide. This is where the experience and familiarity of an attorney with the prosecutor and court pays off. Some prosecutors I deal with are willing to move for dismissal once I point out a problem with a case, while others would prefer the judge to decide, even if they know the defect is fatal to thier case.

Be aware that even if a traffic violation or other Class "C" misdemeanor is dismissed, the state may refile the case as long as it does so within the statute of limitations.

If there are no grounds to dismiss your case, or if your case was dismissed and timely refiled without any flaws, then it is time to weigh the other options available to dispose of your case through plea bargaining or trial.

What is a plea bargain?

A plea bargain is a compromise. Simply put, you want something, and the state wants something. You enter into an agreement with the state to do or refrain from doing certain things over a set period of time. Upon your successful completion of your side of the bargain, the state honors its obligations under the agreement to dismiss the case or otherwise dispose of it in the manner agreed to. If you fail to successfully fulfill your obligations under the plea agreement, you may subject yourself to a conviction, additional fines, a summons to appear at a show cause hearing, and warrants for your arrest.

What is the advantage of having an attorney if I just want a plea bargain?

An attorney can look at your case with a trained eye not only to determine whether there are grounds for dismissal, but to expose weaknesses to the prosecutor. While these weaknesses may not be cause for dismissal, they may still be significant enough to present problems for the prosecutor in the presentation of the case at trial. If you are not represented, the prosecutor will be more confident that they can more favorably present their side of the case, in spite of the weaknesses, than they would be able to with an experienced adversary opposing them at trial and exploiting the weaknesses of the case.

Generally, when people are represented, even if they have loser case, the prosecutor knows that the trial will not be a five minute slam dunk. It has been my experience therefore that you have more leverage to plea bargain when you are represented by an attorney. I represented several clients where the prosecutor would not even consider a plea bargain but for the fact that the defendant was represented by an attorney.

Should I take a plea bargain? What are the risks?

If the plea agreement delivers the outcome you desire, for example, a dismissal, and you can comply with the conditions of the plea agreement, it may be a viable option for you. There is always a risk that you may not successfully comply with the agreement. Your attorney should make you aware of your obligations under the agreement as well as the consequences for your compliance and non-compliance as well. The amount of risk involved in taking a plea agreement really depends on your ability to comply. In a plea agreement you have a good degree of control in the outcome or disposition of your case. A trial on the other hand is a roll of the dice. If your contemplating going to trial, your attorney should give you the best and worst scenarios. If you decide to go to trial, make sure you would be able to live with the consequences should the worst scenario come to pass.

Do I have to accept a plea bargain?

No. You have an absolute right to a trial.

My case is not going to be dismissed. The state will not offer a plea agreement or I do not want to accept a plea bargain. What now?

You have two choices at this point. You can either pay the fine which will result in a conviction, or go to trial. Your only hope to avoid conviction is a trial. Why pay the fine? Usually, at this point, my position is that we either have a good case that should be tried, or we have a bad case but we will make the state work for the conviction rather than hand it to them. Besides, even if it is a bad case to try, there is always the chance you could be found not guilty. We have all seen cases where the verdict has turned out to be oppoisite of what we would have expected, given the facts of the case. Once a case is in the hands of a jury, anything can happen.

Charles French was licensed to practice law in Texas in 1991. The majority of his practice includes the Justice of the Peace and Municipal Courts in Houston, Harris County and surrounding counties. You may visit his website by going to:

www.houstonticketdefender.com

Why Won't DPS Renew My Driver's License?

If you have taken care of all your outstanding warrants and DPS will not renew your license, one possibility is that you have not paid your OMNI fees. When you receive a ticket and miss a court date, one or more of the following things may occur:

1) An additional charge of Violate Promise to Appear (VPTA) or Failure to Appear (FTA) is filed in addition to the violations you were initially charged with.

2) A warrant for each charge is issued for your arrest.

3) Most courts will enter your information into the Texas Department of Public Safety Failure to Appear Database (OMNI) which tells DPS not to renew your license because you missed court. For each charge entered into the OMNI system, DPS charges a fee of about $30.00. This fee is commonly known as the DPS or OMNI fee. The OMNI fee will be charged to you and is in addition to any fines and cort costs involved with your case.

The obvious reason for these measures is to get people to take care of their tickets. In the old days, some people didn't worry too much if they had traffic warrants, especially if they resided far away from the offended jurisdiction. As a result, some folks simply ignored their traffic tickets. To persuade people to take care of their tickets, laws were passed allowing the courts to notify DPS to put a hold on your license renewal if you had delinquent traffic tickets.

So, if you have taken care of all outstanding warrants and violations, you may still owe OMNI fees. Once the fees are paid, the court clerk sends a clearance notice to the DPS to let them know there is no need to continue to hold the renewal on your driver's license. It has been my experience that even though the court clerk sends the clearance notice immediately, it still may take several days, maybe 7 to 14, before your license is cleared for renewal. My guess is that the DPS is probably swamped with processing clearance notices as it is an ongoing task.Where do I pay the OMNI fees?

You may pay the OMNI fees at the court where the case was filed.When can I pay the OMNI fees?

By law, OMNI fees may be paid when a bond is posted, a judgement is entered on the case or upon dismissal of the case.I posted a bond but the clerk tells me that I cannot pay the OMNI fee until the case is disposed of. Is the clerk right?

No. This is incorrect. It may take months before the case is finally disposed of. The law was not meant to deprive people of their driver's license for months once they've taken steps to address their court issues. Once a bond is posted, the OMNI fee may be paid. I too have experienced this refusal of the clerk in certain courts to accept the fee when they should. I've discovered two reasons, although, there may be more, why the clerk refuses to accept the OMNI fee prior to the case being disposed of.

In some instances the court staff is simply unaware that they are supposed to accept payment of the fee once a bond is posted. Convincing them is difficult because they often take the "we've always done it this way" position and are convinced that they are correct, or they would have been instructed otherwise.

The second reason that clerks refuse to accept the fee prior to the final disposition of the case is because of their software. Their computer setup is such that accepting the fee prior to final disposition requires the clerk to manually input the information which presents a much more difficult technical task than it otherwise would upon final disposition of the case.

Here is what I would do. First do not argue with the clerk. Politely tell the clerk that it is your understanding that once the bond is posted, the fee can be paid. If the clerk still refuses to accept the fee, don't press the issue further with the clerk. Write a brief letter addressed to the presiding judge of the court. Do not discuss the merits of your pending case(s) in the letter as it is not proper for the judge to consider those issues outside the presence of the state's counsel. You may want to write something similar to the following:

Dear Judge ______

I missed my court date and have since posted bonds. (My court date is set for March 19, 20_./I am still waiting for a court date). I tried to pay my DPS fees in this court so I can renew my driver's license but the clerk refused to accept it saying that I had to wait until the final disposition of my case(s). My understanding of the law is that once I post a bond, I can pay the DPS fee to the court and the clerk will then send the clearance notice to DPS so that I can renew my license. Not being able to renew my license creates a hardship on me (my family, job, school, kids, etc.).

I would appreciate your assistance in this matter, and look forward to your response.

Sincerely

John Doe



I would send this letter to the judge by fax and by certified mail. If it is not resolved, see an attorney.

Tip: Always be polite to all court personnel even if they are having a bad day. Most of them I've dealt with are professional. Yes there are some bad apples like everywhere else and some I really do not care for at all. But you'll get more flies with honey than with vinegar. You'd be surprised how much further you get by being courteous, even with those few bad apples. Hope this helps.

Tip: If you have traffic warants in Texas, the telephone number to the Texas Department of Public Safety Failure to Appear Database is 1-800-686-0570. If your case has been reported to the database, they will tell you which court the case was filed in. Keep in mind that it is possible that you have warrants but that your case has not been entered into the database.

Charles French was licensed to practice law in Texas in 1991. The majority of his practice includes the Justice of the Peace and Municipal Courts in Houston, Harris County and surrounding counties. You may visit his website by going to:

www.houstonticketdefender.com