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Complaints In Justice And Municipal Courts

Most of my posts here are geared toward non-attorneys, as well as attorneys.  This one is geared more toward attorneys.

I occasionally run into this situation, as I am sure, many have, where a judge, or a prosecutor, or both, in justice or municipal court, do not have a criminal law background.  Some come from civil law backgrounds, or no law background at all, and are taking the bench, or prosecuting, for the first time.

Some of you defense attorneys, like myself, have experienced the frustration of making a motion to quash, for obvious defects in the complaint, only to have the judge deny the motion.  Now you are stuck with going to trial on a bad or defective complaint.

I recently ran into the situation, in justice court, where the speeding complaint failed to allege essential elements of the offense including the following: 1) motor vehicle 2) public road 3) at a speed greater than was reasonable and prudent 4) the prima facie reasonable and prudent speed limit.  In fact, the only thing the complaint did allege was that the defendant exceeded the speed limit, and the county where the offense occurred.

The prosecutor, in opposing my motion to quash, cited Kindley v. State, 879 S.W.2d 261, and in so doing, misrepresented that Kindley means that the only purpose of the complaint is to give defendant sufficient notice to prepare a defense.

I argued that a complaint may give sufficient notice under Kindley, yet still be defective for not alleging all essential elements.

The judge, not knowing what either of us was talking about, and having a jury panel waiting outside, was not in the mood to postpone the trial, in order to look at the cases and statutes, and hopefully make an informed decision.  The judge decided that we were going forward on the complaint as drafted.

Needless to say, going to trial on such a complaint is a terrible injustice to the defendant.  It misleads the jury into thinking that all the state has to prove is that the defendant exceeded the speed limit.  Not having to prove all elements of the offense charged, substantially lowers the burden of proof for the state, below that required by law.  A complaint that does not allege all elements of the offense, is defective, and does not give sufficient notice for the defendant to prepare a defense.  Further, if a complaint does not state all elements of an offense, then it does not allege an offense.  How does the court have personal jurisdiction over a defendant who has not been charged with an offense?

Going to trial on a defective complaint deprive's the defendant of due process and a fair trial.  I put my objections to the complaint in writing, and gave notice of appeal, rather than wasting time going to trial on a complaint, where frankly, all the prosecutor had to do was cough, and the defendant would be found guilty.

I decided I needed to do a better job in presenting this issue to judges and prosecutors in a concise manner they could grasp in minutes.  This is it.

COMPLAINTS AS CHARGING INSTRUMENTS

 IN JUSTICE AND MUNICIPAL COURTS

There are several types of complaints.  The affidavit in support of an arrest warrant is called a complaint. (Art. 15.04. Tex. Code Crim. Proc.).  The affidavit in support of a criminal information is called a complaint.  (Art. 21.22. Tex. Code Crim. Proc.).  The charging instrument used in justice and municipal courts, is also called a complaint.  (Art. 45.018. Tex. Code Crim. Proc.).

Unlike a support affidavit for an arrest warrant or criminal information, a complaint in justice or municipal court is a charging instrument.

“For purposes of this chapter, a complaint is a sworn allegation charging the accused with the commission of an offense.”    (Art. 45.018. Tex. Code Crim. Proc.).

As a charging instrument, the complaint must allege essential elements, or else it is defective. Adams v. State, 524 S.W.2d 67 (Tex.Crim.App. 1975) (Where defendant was charged with Fail to Control Speed, and complaint failed to allege the essential elements that appellant was operating (1) a motor vehicle (2) on a highway, complaint was defective).  (Both of these facts are essential elements of the offense sought to be charged). Vallejo v. State, 408 S.W.2d 113 (Tex.Cr.App., 1966).

“Although the particularity in pleading that is required for an indictment or an information may not be required for a complaint”, as noted in  Kindley v. State, 879 S.W.2d 261, 263 Tex.App.—Houston [14th Dist.] 1994, “a complaint used as a charging instrument must nonetheless allege all the essential elements of an offense.” Bird v. State , 927 S.W.2d 136 (1996) Court of Appeals of Texas, Houston (1st Dist.); Adams v. State, 524 S.W.2d 67 (Tex.Crim.App. 1975)

CONCLUSION

Complaints in justice or municipal courts are charging instruments.  They should not be confused with the complaints that are support affidavits for search warrants or criminal informations, which are not charging instruments.  Although, a fundamental purpose of the complaint is to give sufficient notice, so that the defendant can prepare a defense, a charging instrument must also allege the essential elements of the offense charged.  A complaint that fails to do so is defective, does not charge an offense, unfairly lowers the state’s burden of proof , as required by law, and deprives the defendant of due process and a fair trial.

Notes on Kindley V. State

1. Although the complaint was a charging instrument in justice court, the court  cited Art. 15.04, which is an affidavit in support of an arrest warrant

2. The complaint was not challenged for failing to plead essential elements of the offense, it was challenged for 1) seal, 2) notary 3) not being verified 4) notice 5) jurisdiction.

3. The complaint alleged most elements, but did not plead public road.  Had the appellant raised this issue, the complaint would have been found defective.  In fact; Justice Sears even summed up the opinion saying “Once again, a pro se litigant has proven the wisdom of the old adage “one who represents himself has a fool for a client.”“

4. Here are three quotes from Kindley with a  follow up note on each.

1) “the particularity in pleading that is required for an indictment or an information is not required for a complaint”

Note:  What does this mean? As far as I can tell it has never been defined.  Does it mean you have to  plead motor vehicle, but do not have to specify Ford or Chevy? It does not mean anything.

2) “a complaint will not be dismissed due to a mere informality”

Note:   This was based on Art. 45.27, of the 1965 Code, which has since been omitted from the current Code.  As far as I can tell “informality” has never been defined.  I can only assume, Kindley was talking about the court seal, and the notary seal, both which were not required, at that time.

3) “The purpose of such a complaint is to apprise the accused of the facts surrounding the offense with which he is charged so that he may prepare a defense”

Note: I know what this doesn’t mean.  It doesn’t mean “As long is it gives notice, it does not have to do anything else”.

Note: A complaint can be sufficient for notice purposes under Kindley, and still be defective for failing to allege all essential elements. Bird v. State, 927 S.W.2d 136 (1996) Court of Appeals of Texas, Houston (1st Dist.), Adams v. State, 524 S.W.2d 67 (Tex.Crim.App. 1975).

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:

http://www.charlesfrenchattorney.com

I Am A Cat Butler

All this time, I thought I was a cat owner.  It dawned on me today, that I am actually a cat butler.  Here are three of my five.  I thought they loved watching college football with me.  Turns out, I think they are more into laying on me while I watch college football.  If you sit down, you are guaranteed to have at least three cats on you within thirty seconds.

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:

http://www.charlesfrenchattorney.com

Red Light Camera Citations

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.

One thing I need to know, before I get into red light camera tickets.  Is it possible to open a roll of stamps without destroying the first four or five? Okay, on to red light camera tickets.

You guys with red light camera tickets, and I am speaking of red light camera tickets in Texas only. Red light camera tickets are not the same as when an officer writes you a ticket for running a red light.  Camera tickets do not go on your driving record.  You probably will not find a lawyer to represent you on them.  The only people I know who are possibly hurt by them, are people who drive their employers vehicle, such as metro bus drivers.  Camera tickets get mailed to the registered owner.  So, if you drive your employers vehicle, and they care about your driving habits, making the classic "California stop" in their vehicle may be a problem for you.  A red light camera ticket is a civil matter, unlike when an officer writes you up for up for a red light, which is a criminal matter.  Why does it matter whether civil or criminal?

Since a camera ticket is not criminal, you have less constitutional protections, than you would if it were a criminal matter.  With a camera ticket, you are not entitled to a jury trial, only an administrative hearing before a hearing officer.  The burden of proof to hold you liable for a camera ticket, is a lot lower than that required to prove your guilt in a criminal matter.

Since you are only entitled to an informal hearing, coupled with the fact that camera tickets are not reported to your driving record, few lawyers, if any touch them.  Myself included.  What I tell people when they call with camera tickets is to look at the picture or video.  If it is favorable to you, and you want to take the time, request the hearing.  If it shows unfavorable to you, or you do not want to take the time, just pay it and drive on.  Whatever you decide, if you own the vehicle, in which the camera ticket was gotten, do not ignore it.  Things like this tend to come back to haunt you at the worst possible time.  These are things like holding up the registration, when it is time to renew, or when it is time to sell or trade your car.

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:

http://www.charlesfrenchattorney.com

View From My Road Office

Stopped here to return some calls today.  Did not want to leave.

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:

http://www.charlesfrenchattorney.com

Delinquent Tickets? Read This Before You Pay Them

I get at least one call a week, where the person has outstanding tickets, and/or warrants, sometimes lots of them, and, more times than not, they do not know where or in what courts the cases are pending. Most of the time, they are brought to the realization that they must now deal with the delinquent tickets because they cannot renew their driver's license. Most are searching for a quick easy fix because, for various reasons, employment, etc., they need their license last week. Most are looking for that attorney that they can hire to quickly clear up the situation, call them back in a couple of days, and tell them they can go renew their license. I hate to burst your bubble, but unfortunately, in most of these type of situations, that person simply does not exist. That is the cold shot of reality you need so that you make the best use of your time and resources and get started in the right direction in resolving your situation. Read each of the below topics, and you should have a good idea of how to handle your delinquent ticket situation, in a way that will minimize further damage to both, your driving record, and your ability to renew your license.

Do Not Simply Pay Your Delinquent Tickets

When a mosquito lands on your arm, you have a natural tendency to swat it. In fact, it's practically a reflex. When your license is expired, and you are desperate to renew it, there is a similar knee jerk reaction to resolve it quickly by simply paying the tickets. Resist the temptation to do so. Here is why you do not just simply pay your delinquent tickets. When you pay your tickets, the violations then become convictions. That's where new problems will begin. Certain convictions trigger license suspensions, and may raise your insurance rates. Do not swat the mosquito on your license by paying the delinquent tickets. Doing so may do more harm than good, and may further hinder your ability to renew your license.

The Process to Properly Handle Delinquent Tickets in a Nutshell

When people ask me what to do in this situation, these are the steps I tell them to follow. It doesn't matter whether they have two violations in one court or two hundred violations scattered in several courts. The steps are the same for either situation.

1. Find out in a what court(s) the cases are pending.

2. Post bonds to get the cases back on the courts docket.

3. Hire an attorney to represent you to keep the violations from becoming convictions.

For each court where you have cases pending, you will need a bondsman and an attorney. The bondsman may be you, a bail bondsman, or sometimes, the attorney representing you in that court. This is not an enjoyable process, but it is the best road map I can give you to dig yourself out. Memorize the above three steps and read the paragraphs below, and you will be armed with the information you need to improve your situation.

How Do I Find The Court In Which My Cases Are Pending?

I find that people do not hold on to their tickets sometimes. Especially those whose tickets are ten or more years old. Some people think there is a database that lists all the courts in which they have pending tickets. There is no such database. One way to figure out where your tickets are is to call both, the Municipal and Justice of the Peace Courts near the location where you received the ticket. Another great place to start is the Texas Failure to Appear database. If you miss court, most courts will place you into this system (known also as the OMNI system) so that the DPS will not renew your driver's license. It may not show all courts where you have delinquent tickets, but it will show most of them. It is a very useful tool and here is the link: http://www.texasfailuretoappear.com/search.php.

If you place your cursor over the court in the left hand column of the screen, it will give you the court's telephone number and address.

What Is a Bond?

A bond is a security that you place with the court to lift the warrants and get you a new court date. There are generally three types of bonds. A cash bond is where you give cash to the court to hold in order to secure your appearance in court on the new court date. When your case is disposed of, you get the cash back, minus any court costs. A bail bond is where you go to a bail bondsman and pay the bondsman to post the bond with the court for you. You usually pay a non-refundable percentage of the bond amount to the bondsman and you do not get any of it back. Finally, there is an attorney surety bond that your attorney can post for you as long as they are representing you on the case or cases they are posting the bond for.

How Do I Post a Bond?

Contact the court if you want to post a cash bond. Contact a bondsman in the county in which the court is located to post a bail bond through a bondsman. Check with the attorney who will be representing you to see if they can post an attorney surety bond for you.

Finding An Attorney

You will want an attorney to represent you so that, hopefully, the cases can be handled in a way to avoid convictions which may otherwise trigger license suspensions, and raise your insurance rates. If your tickets are in another city or town far away, you may want to search for a local attorney in that jurisdiction. One advantage to retaining local counsel is their familiarity with that particular court. Additionally, it may be too expensive to hire an attorney to travel to where your tickets are pending.

Be Aware, The Following Terms And Phrases Are Not Synonymous

Although they are often erroneously used interchangeably by lawyers, clients, police officers, DPS and court personnel, the following terms should not be confused, as they are each entirely different from each other.

Driver's License Suspension-If a driver's license is suspended, then there will be a definite period of suspension. A start date and a date on which the suspension is over. A license may be suspended for any number of reasons including for certain convictions. A driver's license may have more than one suspension at the same time.

Invalid Driver's License-A license may become invalid for any number of reasons including being unable to renew your driver's license due to a failure to appear in court. Unlike a driver's license suspension, there is not definite start and stop date. The period of invalidation is contingent upon removal of the cause or causes for the license being invalid. In addition to other issues, the validation of the license may require the payment of  of OMNI fees, and or re-instatement fees.

Denial of Renewal of Driver's License-If you miss court, the court may place you in the Failure to Appear database so that you cannot renew your driver's license. The inability to renew Your driver's license is not a suspension, but may be the cause for the license being invalid, due to the inability to renew it.

OMNI Fees-When you are entered into the Failure to Appear (OMNI) system for missing court, you will incur OMNI fees. OMNI fees are e$30.00 for each violation entered into the system. You must pay each $30.00 fee in order to remove the violations from the OMNI system so that you can renew your driver's license. The fees are paid at the court. Usually, you cannot pay the OMNI fees until you post a bond.

Failure to Appear-A charge filed when a person when a person misses court. The charge is in addition to the underlying charge such as speeding.

Warrant-Court order to arrest a person for missing court or for some other reason.

Be aware that any number or combination of all the above may be present at the same time.

But These Cases Are So Old, I Can't Believe They are Holding These Over My Head

I have people call me today with things from the 90's. That was last century folks. Unfortunately, warrants do not die of old age. With technology comes the ability to track forever.

But I've Been Stopped Several Times, I've Renewed My License Twice Since Then, And It's Never Been A Problem Until Now

Here is my explanation as to why it's never been a problem until now. They may have just recently acted on it. When you miss court, one or more of the following may occur:

1. An additional charge of Failure to Appear is filed.

2. A warrant or warrants are issued for your arrest.

3. You are entered into the OMNI system so that you cannot renew your license.

Any one or more of these events may occur at the time you fail to appear in court, a day later, a week later, a month later, up to two years later to file a Failure to Appear, and several years later with regard to issuing warrants and entering you into the OMNI system. There is no limitation on issuing warrants and entering a case into the OMNI system.

When Can I Renew My Driver's License?

That depends on the cause or causes of your not being able to renew.

Driver's License Suspension-When the suspension period is over and you have paid a reinstatement fee to DPS.

Invalid Driver's License-When the cause of the license being invalid has been removed, such as the payment of OMNI Fees.

Denial of Renewal of Driver's License-If the denial is due to missing court, then whenever you pay the OMNI fees.

Warrant-If you do not have a suspension, invalid license, or are not in the OMNI system, a warrant in and of itself does not prevent you from renewal, but of course, you may be arrested when you go to the DPS.

If you are clear of each of the above items, you should be good to go. If not, then you need to contact DPS to see what's holding you up.  Try this DPS website:

https://txapps.texas.gov/txapp/txdps/dleligibility/login.do

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

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