FUNDED BY A GRANT FROM THE TEXAS COURT OF CRIMINAL APPEALS TEXAS MUNICIPAL COURTS EDUCATION CENTER 2210 HANCOCK DRIVE, AUSTIN, TEXAS 78756 TELEPHONE 512.320.8274 1.800.252.3718 FAX 512.435.6118 TMCEC IS A PROJECT OF THE TEXAS MUNICIPAL COURTS ASSOCIATION Fines, Fees, Costs, and Indigence Revisited Presented by Ryan Kellus Turner, General Counsel & Director of Education, TMCEC What a difference a year makes! In FY 2017, the TMCEC staff attorneys presented Fines, Fees, Costs, and Indigence at all the regional programs, asking whether we can better serve the interests of the poor while maintaining public safety, respecting equal protection of the law, and administering fairly? Do we need more laws or do we need to do a better job of enforcing the ones we have? The 85th Legislature attempted to answer both those questions. H.B. 351 and S.B. 1913 increase procedural protections for low income and indigent criminal defendants and give judges more leeway in delineating between fines and state mandated court costs and in the manner in which each is respectively discharged. For the most part, these bills do not compromise the ability of criminal courts, after affording due process, to enforce their lawful judgments against all defendants. This clinic will reexamine fines, fees, costs, and indigence in light of recent events and new laws regarding sentencing, community service, and enforcement. By the end of this session, participants will be able to: 1. Identify statutory law and Texas and federal case law related to fines, fees, costs, and indigence; 2. Discuss the ethical violations committed when courts do not comply with safeguards in Texas law; 3. List the three alternative means defined under Texas law related to the satisfaction of fines and costs owed as a result of a fine only conviction; 4. Contrast the right to counsel and the right to appointed counsel for defendants facing Class C misdemeanor charges in Texas municipal courts; and 5. Describe effective practices used to reduce the number of defendants arrested for fine only misdemeanors.
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Transcript
FUNDED BY A GRANT FROM THE
TEXAS COURT OF CRIMINAL APPEALS
TEXAS MUNICIPAL COURTS
EDUCATION CENTER
2210 HANCOCK DRIVE, AUSTIN, TEXAS 78756
TELEPHONE 512.320.8274
1.800.252.3718
FAX 512.435.6118
TMCEC IS A PROJECT OF THE TEXAS MUNICIPAL COURTS ASSOCIATION
Fines, Fees, Costs, and Indigence Revisited
Presented by
Ryan Kellus Turner, General Counsel & Director of Education, TMCEC
What a difference a year makes! In FY 2017, the TMCEC staff attorneys presented Fines, Fees, Costs, and Indigence
at all the regional programs, asking whether we can better serve the interests of the poor while maintaining public
safety, respecting equal protection of the law, and administering fairly? Do we need more laws or do we need to do
a better job of enforcing the ones we have? The 85th Legislature attempted to answer both those questions. H.B. 351
and S.B. 1913 increase procedural protections for low income and indigent criminal defendants and give judges more
leeway in delineating between fines and state mandated court costs and in the manner in which each is respectively
discharged. For the most part, these bills do not compromise the ability of criminal courts, after affording due process,
to enforce their lawful judgments against all defendants. This clinic will reexamine fines, fees, costs, and indigence
in light of recent events and new laws regarding sentencing, community service, and enforcement.
By the end of this session, participants will be able to:
1. Identify statutory law and Texas and federal case law related to fines, fees, costs, and indigence;
2. Discuss the ethical violations committed when courts do not comply with safeguards in Texas law;
3. List the three alternative means defined under Texas law related to the satisfaction of fines and costs owed
as a result of a fine only conviction;
4. Contrast the right to counsel and the right to appointed counsel for defendants facing Class C misdemeanor
charges in Texas municipal courts; and
5. Describe effective practices used to reduce the number of defendants arrested for fine only misdemeanors.
1
FINES, FEES, COSTS, AND INDIGENCEREVISITEDRyan Kellus TurnerGeneral Counsel and Director of Education, TMCEC
ONE‐DAY CLINIC
Other than the Format of this Presentation
Where did we leave off?And what has happened since?
2
DECEMBER 2017
It was among “25 examples of improper or unnecessary guidance documents identified by our Regulatory Reform Task Force ” Attorney General Jeff Sessions.
3
• This type of litigation involves bringing lawsuits intended to effect societal change.
• It may be a class action lawsuit or individual claims with broader significance and may rely on statutory or constitutional claims.
• It is widely and successfully used to influence public policy and to attract media attention.
4
Our Focus in AY 2017
85th Texas Legislature (2017)
HB 351 and S.B. 1913
Let’s See if We Can Clear Some Things Up
5
Objectives
1. Identify statutory law and Texas and federal case law related to fines, fees, costs, and indigence;
2. Discuss the ethical violations committed when courts do not comply with safeguards in Texas law;
3. List the three alternative means defined under Texas law related to the satisfaction of fines and costs owed as a result of a fine‐only conviction;
4. Contrast the right to counsel and the right to appointed counsel for defendants facing Class C misdemeanor charges in Texas municipal courts; and
5. Describe effective practices used to reduce the number of defendants arrested for fine‐only misdemeanors.
Part I. IMPOSING FINES, FEES, & COURT COSTS
True or False
A. True
B. False
True
False
0%0%
A trial court denies a defendant due process when it arbitrarily refuses to
consider the entire range of punishment or imposes a
predetermined punishment.
6
Consider the full fine range for the offense.
• Make meaningful use of the fine range because after a judgment is final, there is no statutory authorization or mechanism to change the fine amount.
What message is your court sending about fines?
IMPOSING FINES, FEES, & COURT COSTS (cont.)
See Related Resources: Road Map to Resolution and What If I Can’t Pay?
What Do You Think?
Yes
No
0%0%
A. Yes
B. No
Should a court consider the financial resources and obligations of the defendant, the burden payment of a fine will impose, and ability of the defendant to pay?
Article 45.041(b), Code of Criminal Procedure.
The judge may direct the defendant to pay:
(1) the entire fine and costs when sentence is pronounced,
(2) the entire fine and costs at some later date, or
(3) a specified portion of the fine and costs at designated intervals.
Questions:
‐ Why are there three options?
‐ What happens if the defendant cannot pay the fine and costs when the sentence is pronounced?
IMPOSING FINES, FEES, & COURT COSTS (cont.)
7
H.B. 351/S.B. 1913
I. New Requirement for Assessing Ability to Pay for Open Court Pleas: Art. 45.041(a-1)– Judge is Required to Make an Inquiry
– If Insufficient Resources, Determine if Fines and Costs should be:
1. Paid at Later Date or Designated Intervals
2. Discharged via Community Service
3. Waived in Full or Part or A Combination of 1-3
IMPOSING FINES, FEES, & COURT COSTS (cont.)
If the judge determines that the defendant is unable to immediately pay the fine and costs, the judge shall allow the defendant to pay the fine and costs in specified portions at designated intervals.
– Article 45.041(b‐2), Code of Criminal Procedure.
A judge may require a defendant who is determined by the court to have insufficient resources or income to pay a fine or costs to discharge all or part of the fine or costs by performing community service. ‐Article 45.049(a), Code
of Criminal Procedure.
H.B. 351/S.B. 1913
II. A. New Waiver of Payment/Default Requirement Repealed: Art. 45.0491
Courts May Waive All or Part of A Fine or Cost IF (1) defendant is indigent or (2) does not have sufficient resources/income to pay all or part of fine or costs or (3)was a child at the time of the offense AND (4) discharging the fine or costs by Community Service would impose an undue hardship on the defendant.
8
H.B. 351/S.B. 1913
II. B. New Waiver of Payment/Presumption of Indigence for Certain Children: Art. 45.0491
A defendant is presumed to be indigent or not have sufficient resources/income to pay all or part of the fine or costs if:
1. in conservatorship of the Department of Family and Protective Services or was at the time of the offense; or
2. designated as a homeless child or youth or an unaccompanied youth, or was so designated at the time of the offense.
Part II. ENFORCING FINES BY COMMITMENT TO JAIL
Yes or No
A. YesB. No
Yes
No
0%0%
May an indigent defendant be incarcerated solely for inability to pay a fine, court costs,
or restitution?
9
True or False
A. True
B. False
True
False
0%0%
Courts must not incarcerate a person for nonpayment of fines or fees without first conducting an indigency determination and establishing that the failure to pay was willful.
ENFORCING FINES BY COMMITMENT TO JAIL (Cont.)
An indigent defendant shall not be incarcerated solely for inability to pay a fine, court costs, or restitution.
Tate v. Short, 401 U.S. 395 (1971); Gipson v. State, 383 S.W.3d 152 (Tex. Crim. App. 2012) (citing Bearden v. Georgia, 460 U.S. 660 (1983).
“Courts must not incarcerate a person for nonpayment of fines or fees without first conducting an indigency determination and establishing that the failure to pay was willful.”
DOJ Dear Colleague Letter (pp. 3‐4)
Bearden v. Georgia (1983) – A sentencing court cannot revoke a defendant’s probation for failure to pay a fine and to make restitution, unless the defendant was
responsible for the failure or that the alternative forms of punishment were inadequate to meet the State’s
interest in punishment and deterrence.
Tate v. Short (1971) – An indigent defendant’s fine could not be automatically converted to jail time simply because they could not pay the fine in full. Courts must allow “alternative means” to
discharge fines and costs.
Williams v. Illinois (1970) – A defendant sentenced to jail longer to discharge fines and costs was a violation of the Equal Protection
Clause of the 14th Amendment
10
Extrapolating from Bearden
• If the probationer has willfully refused to pay when he has the ability to OR has failed to make sufficient bona fide efforts, then the State is justified in using imprisonment as a sanction to enforce collection
Texas Court of Criminal Appeals: “Bearden prescribes a mandatory judicial directive to make inquiry into the reason for failure to pay and permits jail when alternative means are inadequate for punishment and deterrence.” Gipson v. State, 428 S.W.3d 107, 110 (Tex. Crim. App. 2014).
Black’s Law Dictionary:“Willfully” ‐ Voluntary & Intentional“Bona Fide” ‐ Made in Good Faith
ENFORCING FINES BY COMMITMENT TO JAIL (Cont.)
A CAPIAS PRO FINE IS NOT A COMMITMENT ORDER.
• Article 45.046(a), Code of Criminal Procedure.
– A non‐indigent defendant may be committed to jail when he or she defaults in the discharge of the judgment if the person has failed to make a good faith effort to discharge the fine and costs.
– An indigent defendant may be committed to jail when he or she defaults in the discharge of the judgment if he or she has (1) failed to make a good faith effort to discharge the fines and costs through community service and (2) could have done so without experiencing any undue hardship.
ENFORCING FINES BY COMMITMENT TO JAIL (Cont.)
• Commitment for nonpayment may only be ordered after the judge (1) at a hearing (2) makes the required written determinationunder Art. 45.046(a), C.C.P.
• In the event of commitment, the length of incarceration to satisfy the fine and costs is specified by the convicting court: not less than $50 for each period (not less than eight or more than 24 hours) of time served.
11
H.B. 351/S.B. 1913
III New Jail Credit: Art. 45.048
A defendant should be given credit of not less than $100 for each period of confinement (8‐24 hours as determined by judge).
ENFORCING FINES BY COMMITMENT TO JAIL (Cont.)
A defendant who is jailed solely because of inability to pay or who has been in jail a sufficient length of time to satisfy the fine and costs shall be released on habeas corpus. Art. 45.048, C.C.P.
Canon 2(A) –Comply with Law/Promote Public Confidence in Integrity/Impartiality of JudiciaryCanon 3(B)(2)– Maintain Professional Competence in the LawCanon 3(B)(6) Manifesting Socioeconomic Bias/Prejudice (Judge and Court Staff)
Canon 3(D)(1) ‐ A judge who knows of judicial misconduct raising a substantial question as to another judge’s fitness is obligated to (1) inform SCJC or (2) take appropriate actionCanon 3(C)(3) – Special Responsibility for Judges with Supervisory Duties to Assure Prompt and Proper Performance of Judges
No Presumption of Inability to
Pay
MANDATORY Judicial Directive to Determine
At Time of Judgment/ Sentence
At Time of Commitment Order/Hearing
(Art. 45.041, CCP) (Art. 45.046, CCP)
12
PRACTICE TIPS
PRACTICE TIPS
• Document the Determination
• A certified copy of the judgment, sentence, and order are sufficient to authorize confinement of a defendant.
• Time is of the Essence
• Be Ready for Public Document Inspection
H.B. 351/S.B. 1913
IV. New Requirements for Capias Pro Fine: Art. 45.045Court may not issue a capias pro fine unless the court first holds a hearing on the defendant’s ability to pay, and:
1. the defendant fails to appear at the hearing; or
2. based on evidence presented at the hearing, the court determines that the capias pro fine should be issued.
13
• Bookend One: During or Immediately After Imposing the Sentence in OPEN COURT (Art. 45.041, CCP)
• Bookend Two: Prior to a Capias Pro Fine (Art. 45.045) or Commitment (Art. 45.046, CCP)
The Bookend Approach
H.B. 351/S.B. 1913
Part III. COURT ACTIONS ON NON‐PAYMENT
True or False
A. True
B. False
True
False
0%0%
Courts may consider alternatives to incarceration for indigent defendants unable to
V. Community Service Expanded Art. 45.049 and 45.0492
“More than Just Picking Up Garbage”• Work/job skills training• Prep class for high school equivalency exam (administered under 7.111 Ed Code)
• Alcohol/drug abuse program
• Rehabilitation program• Counseling/self improvement program
• Mentoring program• Or similar activity
COURT ACTIONS ON NON‐PAYMENT (Cont.)
Waiver• Waiver is not an alternative means of payment
• Under Art. 45.0491, CCP, waiver is only possible if:– Default AND
– Defendant is indigent or a child AND
– Community service/other alternative means would impose an undue hardship
• “Of 766 municipal courts in Texas the ACLU reviewed that individual settled or resolved at least 100 cases in the last year, the median rate at which these courts allowed people to perform community service was 0.2 percent. The report also said that more than half of the municipal courts declined to waive any amount.”
Associated Press (November 7, 2016)
15
Active Enforcement Capias Pro Fine
Passive Enforcement DPS Omni‐FTA Program
TxDOT Scofflaw Program
Private Enforcement Collection Firms
Civil Enforcement Abstract of JudgmentWrit of Execution
COURT ACTIONS ON NON‐PAYMENT (Cont.)
Permissible Actions on Non Payment
Courts must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections.
The Debate: What constitutes “constitutionally adequate procedural protections?”
Dear Colleague(pp. 6‐7)
True or False
A. True
B. False
True
False
0%0%
Courts must not condition access to a judicial hearing on the prepayment of fines or fees.
16
• Access to Courts (pp. 4‐5)
• Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release (pp. 7‐8)Related, See, Ned Minevitz, “Broadening Bearden: Pre‐Trial Justice and Why Bail Practices May Be In Store For
Major Changes, The Recorder (Aug. 2016)
• Courts must safeguard against unconstitutional practices by court staff and private contractors (p. 8)
‐ A Canon 2 Violation
Dear Colleague
BAIL• As a general rule in Texas, bail may
not be denied. (Article I, Section 11, Texas Constitution)
• The ability or inability to make bail does not, alone, control in determining the amount; however, it is an element to be considered along with the others named in Art. 17.15, C.C.P.
• While bail should be sufficiently high to give reasonable assurance that the defendant will appear, the power to require bail is not to be used as an instrument of oppression. (Art. 17.15(1) ‐ (2), C.C.P.)
• A defendant charged with a Class C misdemeanor who is in jail must be released on personal bond or reduction of bail amount if the State is not ready for trial within 5 days of commencement of detention. (Art. 17.151, C.C.P.)
REMEMBER: Distinguish Between Bail being Set by a Magistrate vs. a Judge
H.B. 351/S.B. 1913VI. New Provisions Relating to Bail & Bond:
Art. 17.42 and 45.016A. Post‐charging, judge may require defendant to give personal bond (without a personal bond fee); however, the judge may not, either instead of or in addition to personal bond, require defendant to post a bail bond (cash or surety) unless (1) the defendant fails to appear;
and (2) the judge determines that:
• the defendant has sufficient resources or income to give a bail bond
• a bail bond is necessary to secure the defendant’s appearance in court.
B. If defendant doesn’t post a bail bond within 48 hours, the judge must reconsider bail bond and presume defendant doesn’t have sufficient resources/income to give the bond (may require a personal bond)
17
“Money Bail” Suits
VII. “Safe Harbor” Provisions
NEW REQUIREMENT TO RECALL AN ARREST WARRANT FOR FAILURE TO APPEAR (Art. 45.014)
If a defendant voluntarily appears and makes a good faith effort to resolve the warrant before it is executed a judge must recall it.
NEW REQUIREMENT: CAPIAS PRO FINE DUTY TO RECALL (Art. 45.045)
A court must recall a capias pro fine if the defendant voluntarily appears to resolve the amount owed and resolves it.
18
Part IV. DETERMINING INDIGENCE
Judges may use the Federal Poverty Guidelines or the Living Wage Calculator as guidance for an indigence
determination.
REMEMBER: MIND THE GAP: Bearden Creates a
Mandatory Judicial Directive
For fine‐only offenses, there is no statutory means test for determining indigence. Judges have discretion in determining whether a defendant is indigent. (Arts. 45.041, 45.046, & 45.049, C.C.P.)
DETERMINING INDIGENCE (Cont.)
To determine indigence, a court may require a defendant under oath to provide income and asset information.
Example: Application for Time Payment, Extension, or Community Service,2015 TMCEC Forms Book.
When a defendant does not pay all the fine and costs at the time of sentencing, it is important for courts to (1) communicate and (2) document its expectation to the defendant and (3) what the defendant should do if he or she is unable to pay in the manner ordered by the judge.
Example: Admonishment as to Financial Changes, 2015 TMCEC Forms Book.
19
In AY 2017, the Discussion was Fixated on “Determining Indigence”
Remember, under the Amended Law being “Indigent” is the Minimum Threshold. It’s Just One of Two Standards.
Remember under Art. 45.0491Courts May Waive All or Part of A Fine orCost IF (1) defendant is indigent or (2) does not have sufficient resources/income to pay all or part of fine or costs or (3)was a child at the time of the offense AND (4) discharging the fine or costs by Community Service (or with extension/installments) would impose an undue hardship on the defendant.
Part V. Notice and the Right to Counsel
“Courts must provide meaningful notice and, in appropriate cases, counsel, when enforcing fines and fees.” Dear Colleague (pp. 5‐6)
VIII. “Meaningful Notice” under Texas Law
NEW REQUIREMENTS FOR PROVIDING NOTICE TO DEFENDANTS
A. Citations must include information on alternatives to full payment of any fine or costs assessed if unable to pay (Art. 14.06(b))
B. No arrest warrant for failure to appear at the initial court setting, UNLESS notice by phone/mail that includes: (Art. 45.014)
• Date/time, within 30‐day period following date of notice, when defendant must appear (may request alternative date/time);
• Name and address of the court with jurisdiction in the case;• Information regarding alternatives to the full payment of any
fine or costs owed by the defendant; and• An explanation of the consequences of defendant’s failure to
appear as required.
20
C. Upon receiving a plea of “guilty” or “nolo contendere” and waiver of jury trial, must provide notice of: (Art. 27.14(b))
– the amount of any fine or costs assessed in the case;
– if requested by the defendant, the amount of any appeal bond that the court will approve; and
– information regarding the alternatives to the full payment of any fine or costs assessed, if the defendant is unable to pay.
D. Communication to a defendant from a public or private collection vendor must include: (Art. 103.0031(j))
– notice of the person’s right to enter a plea or to demand trial on any offense; and
– a statement that if the person is unable to pay the full amount that is acceptable to the court to resolve the case, the person should contact the court regarding alternatives to full payment.
When considering the constitutional right to the assistance of counsel, it is CRITICAL to
distinguish between:
Type 1 Type 2
Understanding the “Right to Counsel” (RtC)
RIGHT OF DEFENDANT to RETAIN an Attorney to:• APPEAR for them in
Court• Provide ADVICE and
ASSISTANCE
RIGHT OF DEFENDANT to HAVE an Attorney to:• APPOINTED by the
Court• APPEAR, ADVISE and
ASSIST
21
Notice and the Right to Counsel (Cont.)
BE CAREFUL• Courts must guard to ensure that they DO NOT violate Type 1 rights;AND
• In regard to Type 2 rights, know the EXCEPTIONS to the GENERAL RULE.
GENERAL RULE• A municipal judge has no Duty to appoint an attorney to represent an indigent defendant in a Class C misdemeanor. Barcroft v. State, 881 S.W.2d 838 (Tex. App.‐‐Tyler 1994, no pet.).
EXCEPTION: Interest of Justice
An indigent defendant is entitled to have an attorney appointed in any criminal proceeding, if the court concludes the interests of justice require representation. 1.051(c), CCP; AG Op. JM‐977.
While there is no Texas case law, Federal case law suggests that “special circumstances” in which failure to appoint counsel would result in a trial lacking “fundamental fairness.” (e.g., youth and immaturity, Moore v. Michigan, 355 U.S. 155 (1957) and mental illness, Massey v. Moore, 348 U.S. 105 (1954)).
Parting Shot
22
What Story Does Your Court’s Data Tell?
• “An Incomplete Picture: State Data and Indigence: While some data is better than none, state and local governments are urged to exercise caution”
– The Recorder: Special Edition (pp. 19‐20)
The Texas ACLU said it is unclear how many people across Texas are jailed for not being able to pay fines and court costs because courts are not required to keep such statistics. Associated Press (November 2016).
Thank You for Your Attention
1
U.S. Department of Justice
Civil Rights Division
Office for Access to Justice
Washington, D.C. 20530
March 14, 2016
Dear Colleague:
The Department of Justice (“the Department”) is committed to assisting state and local
courts in their efforts to ensure equal justice and due process for all those who come before them.
In December 2015, the Department convened a diverse group of stakeholders—judges, court
administrators, lawmakers, prosecutors, defense attorneys, advocates, and impacted
individuals—to discuss the assessment and enforcement of fines and fees in state and local
courts. While the convening made plain that unlawful and harmful practices exist in certain
jurisdictions throughout the country, it also highlighted a number of reform efforts underway by
state leaders, judicial officers, and advocates, and underscored the commitment of all the
participants to continue addressing these critical issues. At the meeting, participants and
Department officials also discussed ways in which the Department could assist courts in their
efforts to make needed changes. Among other recommendations, participants called on the
Department to provide greater clarity to state and local courts regarding their legal obligations
with respect to fines and fees and to share best practices. Accordingly, this letter is intended to
address some of the most common practices that run afoul of the United States Constitution
and/or other federal laws and to assist court leadership in ensuring that courts at every level of
the justice system operate fairly and lawfully, as well as to suggest alternative practices that can
address legitimate public safety needs while also protecting the rights of participants in the
justice system.
Recent years have seen increased attention on the illegal enforcement of fines and fees in
certain jurisdictions around the country—often with respect to individuals accused of
misdemeanors, quasi-criminal ordinance violations, or civil infractions.1 Typically, courts do not sentence defendants to incarceration in these cases; monetary fines are the norm. Yet the harm
1 See, e.g., Civil Rights Division, U.S. Department of Justice, Investigation of the Ferguson Police Department
(Mar. 4, 2015), http://www.justice.gov/crt/about/spl/documents/ferguson_findings_3-4-15.pdf (finding that the
Ferguson, Missouri, municipal court routinely deprived people of their constitutional rights to due process and equal
protection and other federal protections); Brennan Center for Justice, Criminal Justice Debt: A Barrier to Reentry
(2010), available at http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf
(reporting on fine and fee practices in fifteen states); American Civil Liberties Union, In for a Penny: The Rise of
America’s New Debtors’ Prisons (2010), available at https://www.aclu.org/files/assets/InForAPenny_web.pdf
(discussing practices in Louisiana, Michigan, Ohio, Georgia, and Washington state).
caused by unlawful practices in these jurisdictions can be profound. Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no
danger to the community2; lose their jobs; and become trapped in cycles of poverty that can be
nearly impossible to escape.3 Furthermore, in addition to being unlawful, to the extent that these practices are geared not toward addressing public safety, but rather toward raising revenue, they can cast doubt on the impartiality of the tribunal and erode trust between local governments and
their constituents.4
To help judicial actors protect individuals’ rights and avoid unnecessary harm, we discuss
below a set of basic constitutional principles relevant to the enforcement of fines and fees. These
principles, grounded in the rights to due process and equal protection, require the following:
(1) Courts must not incarcerate a person for nonpayment of fines or fees without first
conducting an indigency determination and establishing that the failure to pay was
willful;
(2) Courts must consider alternatives to incarceration for indigent defendants unable to
pay fines and fees;
(3) Courts must not condition access to a judicial hearing on the prepayment of fines or
fees;
(4) Courts must provide meaningful notice and, in appropriate cases, counsel, when
enforcing fines and fees;
(5) Courts must not use arrest warrants or license suspensions as a means of coercing the
payment of court debt when individuals have not been afforded constitutionally
adequate procedural protections;
(6) Courts must not employ bail or bond practices that cause indigent defendants to
remain incarcerated solely because they cannot afford to pay for their release; and
(7) Courts must safeguard against unconstitutional practices by court staff and private
contractors.
In court systems receiving federal funds, these practices may also violate Title VI of the Civil
Rights Act of 1964, 42 U.S.C. § 2000d, when they unnecessarily impose disparate harm on the
basis of race or national origin.
2 Nothing in this letter is intended to suggest that courts may not preventively detain a defendant pretrial in order to
secure the safety of the public or appearance of the defendant. 3 See Council of Economic Advisers, Issue Brief, Fines, Fees, and Bail: Payments in the Criminal Justice System
that Disproportionately Impact the Poor, at 1 (Dec. 2015), available at
https://www.whitehouse.gov/sites/default/files/page/files/1215_cea_fine_fee_bail_issue_brief.pdf (describing the
disproportionate impact on the poor of fixed monetary penalties, which “can lead to high levels of debt and even
incarceration for failure to fulfil a payment” and create “barriers to successful re-entry after an offense”). 4 See Conference of State Court Administrators, 2011-2012 Policy Paper, Courts Are Not Revenue Centers (2012),
available at https://csgjusticecenter.org/wp-content/uploads/2013/07/2011-12-COSCA-report.pdf.
As court leaders, your guidance on these issues is critical. We urge you to review court
rules and procedures within your jurisdiction to ensure that they comply with due process, equal
protection, and sound public policy. We also encourage you to forward a copy of this letter to
every judge in your jurisdiction; to provide appropriate training for judges in the areas discussed
below; and to develop resources, such as bench books, to assist judges in performing their duties
lawfully and effectively. We also hope that you will work with the Justice Department, going
forward, to continue to develop and share solutions for implementing and adhering to these
principles.
1. Courts must not incarcerate a person for nonpayment of fines or fees without first
conducting an indigency determination and establishing that the failure to pay was
willful.
The due process and equal protection principles of the Fourteenth Amendment prohibit
“punishing a person for his poverty.” Bearden v. Georgia, 461 U.S. 660, 671 (1983).
Accordingly, the Supreme Court has repeatedly held that the government may not incarcerate an
individual solely because of inability to pay a fine or fee. In Bearden, the Court prohibited the
incarceration of indigent probationers for failing to pay a fine because “[t]o do otherwise would
deprive the probationer of his conditional freedom simply because, through no fault of his own,
he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness
required by the Fourteenth Amendment.” Id. at 672-73; see also Tate v. Short, 401 U.S. 395,
398 (1971) (holding that state could not convert defendant’s unpaid fine for a fine-only offense
to incarceration because that would subject him “to imprisonment solely because of his
indigency”); Williams v. Illinois, 399 U.S. 235, 241-42 (1970) (holding that an indigent
defendant could not be imprisoned longer than the statutory maximum for failing to pay his fine).
The Supreme Court recently reaffirmed this principle in Turner v. Rogers, 131 S. Ct. 2507
(2011), holding that a court violates due process when it finds a parent in civil contempt and jails
the parent for failure to pay child support, without first inquiring into the parent’s ability to pay.
Id. at 2518-19.
To comply with this constitutional guarantee, state and local courts must inquire as to a
person’s ability to pay prior to imposing incarceration for nonpayment. Courts have an
affirmative duty to conduct these inquiries and should do so sua sponte. Bearden, 461 U.S. at
671. Further, a court’s obligation to conduct indigency inquiries endures throughout the life of a
case. See id. at 662-63. A probationer may lose her job or suddenly require expensive medical
care, leaving her in precarious financial circumstances. For that reason, a missed payment
cannot itself be sufficient to trigger a person’s arrest or detention unless the court first inquires
anew into the reasons for the person’s non-payment and determines that it was willful. In
addition, to minimize these problems, courts should inquire into ability to pay at sentencing,
when contemplating the assessment of fines and fees, rather than waiting until a person fails to
pay.
4
Under Bearden, standards for indigency inquiries must ensure fair and accurate
assessments of defendants’ ability to pay. Due process requires that such standards include both
notice to the defendant that ability to pay is a critical issue, and a meaningful opportunity for the
defendant to be heard on the question of his or her financial circumstances. See Turner, 131 S.
Ct. at 2519-20 (requiring courts to follow these specific procedures, and others, to prevent
unrepresented parties from being jailed because of financial incapacity). Jurisdictions may
benefit from creating statutory presumptions of indigency for certain classes of defendants—for
example, those eligible for public benefits, living below a certain income level, or serving a term
of confinement. See, e.g., R.I. Gen. Laws § 12-20-10 (listing conditions considered “prima facie
evidence of the defendant’s indigency and limited ability to pay,” including but not limited to
“[q]ualification for and/or receipt of” public assistance, disability insurance, and food stamps).
2. Courts must consider alternatives to incarceration for indigent defendants unable to pay
fines and fees.
When individuals of limited means cannot satisfy their financial obligations, Bearden
requires consideration of “alternatives to imprisonment.” 461 U.S. at 672. These alternatives
may include extending the time for payment, reducing the debt, requiring the defendant to attend
traffic or public safety classes, or imposing community service. See id. Recognizing this
constitutional imperative, some jurisdictions have codified alternatives to incarceration in state
law. See, e.g., Ga. Code Ann. § 42-8-102(f)(4)(A) (2015) (providing that for “failure to report to
probation or failure to pay fines, statutory surcharges, or probation supervision fees, the court
shall consider the use of alternatives to confinement, including community service”); see also
Tate, 401 U.S. at 400 n.5 (discussing effectiveness of fine payment plans and citing examples
from several states). In some cases, it will be immediately apparent that a person is not and will
not likely become able to pay a monetary fine. Therefore, courts should consider providing
alternatives to indigent defendants not only after a failure to pay, but also in lieu of imposing
financial obligations in the first place.
Neither community service programs nor payment plans, however, should become a
means to impose greater penalties on the poor by, for example, imposing onerous user fees or
interest. With respect to community service programs, court officials should consider
delineating clear and consistent standards that allow individuals adequate time to complete the
service and avoid creating unreasonable conflicts with individuals’ work and family obligations.
In imposing payment plans, courts should consider assessing the defendant’s financial resources
to determine a reasonable periodic payment, and should consider including a mechanism for
defendants to seek a reduction in their monthly obligation if their financial circumstances
change.
3. Courts must not condition access to a judicial hearing on prepayment of fines or fees.
State and local courts deprive indigent defendants of due process and equal protection if
they condition access to the courts on payment of fines or fees. See Boddie v. Connecticut, 401
U.S. 371, 374 (1971) (holding that due process bars states from conditioning access to
5
compulsory judicial process on the payment of court fees by those unable to pay); see also
Tucker v. City of Montgomery Bd. of Comm’rs, 410 F. Supp. 494, 502 (M.D. Ala. 1976) (holding that the conditioning of an appeal on payment of a bond violates indigent prisoners’ equal protection rights and “‘has no place in our heritage of Equal Justice Under Law’” (citing Burns v.
Ohio, 360 U.S. 252, 258 (1959)).5
This unconstitutional practice is often framed as a routine administrative matter. For
example, a motorist who is arrested for driving with a suspended license may be told that the
penalty for the citation is $300 and that a court date will be scheduled only upon the completion
of a $300 payment (sometimes referred to as a prehearing “bond” or “bail” payment). Courts
most commonly impose these prepayment requirements on defendants who have failed to
appear, depriving those defendants of the opportunity to establish good cause for missing court.
Regardless of the charge, these requirements can have the effect of denying access to justice to
the poor.
4. Courts must provide meaningful notice and, in appropriate cases, counsel, when
enforcing fines and fees.
“An elementary and fundamental requirement of due process in any proceeding which is
to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present their
objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950); see also
Turner, 131 S. Ct. at 2519 (discussing the importance of notice in proceedings to enforce a child
support order). Thus, constitutionally adequate notice must be provided for even the most minor
cases. Courts should ensure that citations and summonses adequately inform individuals of the
precise charges against them, the amount owed or other possible penalties, the date of their court
hearing, the availability of alternate means of payment, the rules and procedures of court, their
rights as a litigant, or whether in-person appearance is required at all. Gaps in this vital
information can make it difficult, if not impossible, for defendants to fairly and expeditiously
resolve their cases. And inadequate notice can have a cascading effect, resulting in the
defendant’s failure to appear and leading to the imposition of significant penalties in violation of
the defendant’s due process rights.
Further, courts must ensure defendants’ right to counsel in appropriate cases when
enforcing fines and fees. Failing to appear or to pay outstanding fines or fees can result in
incarceration, whether through the pursuit of criminal charges or criminal contempt, the
imposition of a sentence that had been suspended, or the pursuit of civil contempt proceedings.
The Sixth Amendment requires that a defendant be provided the right to counsel in any criminal
proceeding resulting in incarceration, see Scott v. Illinois, 440 U.S. 367, 373 (1979); Argersinger
v. Hamlin, 407 U.S. 25, 37 (1972), and indeed forbids imposition of a suspended jail sentence on
a probationer who was not afforded a right to counsel when originally convicted and sentenced,
5 The Supreme Court reaffirmed this principle in Little v. Streater, 452 U.S. 1, 16-17 (1981), when it prohibited
conditioning indigent persons’ access to blood tests in adversarial paternity actions on payment of a fee, and in
M.L.B. v. S.L.J., 519 U.S. 102, 107 (1996), when it prohibited charging filing fees to indigent persons seeking to
appeal from proceedings terminating their parental rights.
6
see Alabama v. Shelton, 535 U.S. 654, 662 (2002). Under the Fourteenth Amendment,
defendants likewise may be entitled to counsel in civil contempt proceedings for failure to pay fines or fees. See Turner, 131 S. Ct. at 2518-19 (holding that, although there is no automatic right to counsel in civil contempt proceedings for nonpayment of child support, due process is violated when neither counsel nor adequate alternative procedural safeguards are provided to
prevent incarceration for inability to pay).6
5. Courts must not use arrest warrants or license suspensions as a means of coercing the
payment of court debt when individuals have not been afforded constitutionally adequate
procedural protections.
The use of arrest warrants as a means of debt collection, rather than in response to public
safety needs, creates unnecessary risk that individuals’ constitutional rights will be violated.
Warrants must not be issued for failure to pay without providing adequate notice to a defendant,
a hearing where the defendant’s ability to pay is assessed, and other basic procedural protections.
See Turner, 131 S. Ct. at 2519; Bearden, 461 U.S. at 671-72; Mullane, 339 U.S. at 314-15.
When people are arrested and detained on these warrants, the result is an unconstitutional deprivation of liberty. Rather than arrest and incarceration, courts should consider less harmful
and less costly means of collecting justifiable debts, including civil debt collection.7
In many jurisdictions, courts are also authorized—and in some cases required—to initiate
the suspension of a defendant’s driver’s license to compel the payment of outstanding court
debts. If a defendant’s driver’s license is suspended because of failure to pay a fine, such a
suspension may be unlawful if the defendant was deprived of his due process right to establish
inability to pay. See Bell v. Burson, 402 U.S. 535, 539 (1971) (holding that driver’s licenses
“may become essential in the pursuit of a livelihood” and thus “are not to be taken away without
that procedural due process required by the Fourteenth Amendment”); cf. Dixon v. Love, 431
U.S. 105, 113-14 (1977) (upholding revocation of driver’s license after conviction based in part
on the due process provided in the underlying criminal proceedings); Mackey v. Montrym, 443
U.S. 1, 13-17 (1979) (upholding suspension of driver’s license after arrest for driving under the
influence and refusal to take a breath-analysis test, because suspension “substantially served” the
government’s interest in public safety and was based on “objective facts either within the
personal knowledge of an impartial government official or readily ascertainable by him,” making
the risk of erroneous deprivation low). Accordingly, automatic license suspensions premised on
determinations that fail to comport with Bearden and its progeny may violate due process.
6 Turner’s ruling that the right to counsel is not automatic was limited to contempt proceedings arising from failure
to pay child support to a custodial parent who is unrepresented by counsel. See 131 S. Ct. at 2512, 2519. The Court
explained that recognizing such an automatic right in that context “could create an asymmetry of representation.”
Id. at 2519. The Court distinguished those circumstances from civil contempt proceedings to recover funds due to
the government, which “more closely resemble debt-collection proceedings” in which “[t]he government is likely to
have counsel or some other competent representative.” Id. at 2520. 7 Researchers have questioned whether the use of police and jail resources to coerce the payment of court debts is
cost-effective. See, e.g., Katherine Beckett & Alexes Harris, On Cash and Conviction: Monetary Sanctions as
Misguided Policy, 10 CRIMINOLOGY & PUB. POL’Y 505, 527-28 (2011). This strategy may also undermine public
safety by diverting police resources and stimulating public distrust of law enforcement.
7
Even where such suspensions are lawful, they nonetheless raise significant public policy
concerns. Research has consistently found that having a valid driver’s license can be crucial to
individuals’ ability to maintain a job, pursue educational opportunities, and care for families.8 At
the same time, suspending defendants’ licenses decreases the likelihood that defendants will resolve pending cases and outstanding court debts, both by jeopardizing their employment and
by making it more difficult to travel to court, and results in more unlicensed driving. For these reasons, where they have discretion to do so, state and local courts are encouraged to avoid
suspending driver’s licenses as a debt collection tool, reserving suspension for cases in which it
would increase public safety.9
6. Courts must not employ bail or bond practices that cause indigent defendants to remain
incarcerated solely because they cannot afford to pay for their release.
When indigent defendants are arrested for failure to make payments they cannot afford,
they can be subjected to another independent violation of their rights: prolonged detention due to
unlawful bail or bond practices. Bail that is set without regard to defendants’ financial capacity
can result in the incarceration of individuals not because they pose a threat to public safety or a
flight risk, but rather because they cannot afford the assigned bail amount.
As the Department of Justice set forth in detail in a federal court brief last year, and as
courts have long recognized, any bail practices that result in incarceration based on poverty
violate the Fourteenth Amendment. See Statement of Interest of the United States, Varden v.
City of Clanton, No. 2:15-cv-34-MHT-WC, at 8 (M.D. Ala., Feb. 13, 2015) (citing Bearden, 461
U.S. at 671; Tate, 401 U.S. at 398; Williams, 399 U.S. at 240-41).10 Systems that rely primarily
on secured monetary bonds without adequate consideration of defendants’ financial means tend
to result in the incarceration of poor defendants who pose no threat to public safety solely
because they cannot afford to pay.11 To better protect constitutional rights while ensuring
defendants’ appearance in court and the safety of the community, courts should consider transitioning from a system based on secured monetary bail alone to one grounded in objective risk assessments by pretrial experts. See, e.g., D.C. Code § 23-1321 (2014); Colo. Rev. Stat. 16-
8 See, e.g., Robert Cervero, et al., Transportation as a Stimulus of Welfare-to-Work: Private versus Public Mobility,
22 J. PLAN. EDUC. & RES. 50 (2002); Alan M. Voorhees, et al., Motor Vehicles Affordability and Fairness Task
Force: Final Report, at xii (2006), available at http://www.state.nj.us/mvc/pdf/About/AFTF_final_02.pdf (a study
of suspended drivers in New Jersey, which found that 42% of people lost their jobs as a result of the driver’s license
suspension, that 45% of those could not find another job, and that this had the greatest impact on seniors and low-
income individuals). 9 See Am. Ass’n of Motor Veh. Adm’rs, Best Practices Guide to Reducing Suspended Drivers, at 3 (2013),
available at http://www.aamva.org/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=3723&libID=3709
(recommending that “legislatures repeal state laws requiring the suspension of driving privileges for non-highway
safety related violations” and citing research supporting view that fewer driver suspensions for non-compliance with
court requirements would increase public safety). 10 The United States’ Statement of Interest in Varden is available at
4-104 (2014); Ky. Rev. Stat. Ann. § 431.066 (2015); N.J. S. 946/A1910 (enacted 2015); see also
18 U.S.C. § 3142 (permitting pretrial detention in the federal system when no conditions will
reasonably assure the appearance of the defendant and safety of the community, but cautioning
that “[t]he judicial officer may not impose a financial condition that results in the pretrial
detention of the person”).
7. Courts must safeguard against unconstitutional practices by court staff and private
contractors.
In many courts, especially those adjudicating strictly minor or local offenses, the judge or
magistrate may preside for only a few hours or days per week, while most of the business of the
court is conducted by clerks or probation officers outside of court sessions. As a result, clerks
and other court staff are sometimes tasked with conducting indigency inquiries, determining
bond amounts, issuing arrest warrants, and other critical functions—often with only perfunctory
review by a judicial officer, or no review at all. Without adequate judicial oversight, there is no
reliable means of ensuring that these tasks are performed consistent with due process and equal
protection. Regardless of the size of the docket or the limited hours of the court, judges must
ensure that the law is followed and preserve “both the appearance and reality of fairness,
generating the feeling, so important to a popular government, that justice has been done.”
Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (internal quotation marks omitted); see also
American Bar Association, MODEL CODE OF JUDICIAL CONDUCT, Canon 2, Rules 2.2, 2.5, 2.12.
Additional due process concerns arise when these designees have a direct pecuniary
interest in the management or outcome of a case—for example, when a jurisdiction employs
private, for-profit companies to supervise probationers. In many such jurisdictions, probation
companies are authorized not only to collect court fines, but also to impose an array of
discretionary surcharges (such as supervision fees, late fees, drug testing fees, etc.) to be paid to
the company itself rather than to the court. Thus, the probation company that decides what
services or sanctions to impose stands to profit from those very decisions. The Supreme Court
has “always been sensitive to the possibility that important actors in the criminal justice system
may be influenced by factors that threaten to compromise the performance of their duty.” Young
v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 810 (1987). It has expressly prohibited
arrangements in which the judge might have a pecuniary interest, direct or indirect, in the
outcome of a case. See Tumey v. Ohio, 273 U.S. 510, 523 (1927) (invalidating conviction on the
basis of $12 fee paid to the mayor only upon conviction in mayor’s court); Ward v. Village of
Monroeville, Ohio, 409 U.S. 57, 61-62 (1972) (extending reasoning of Tumey to cases in which
the judge has a clear but not direct interest). It has applied the same reasoning to prosecutors,
holding that the appointment of a private prosecutor with a pecuniary interest in the outcome of a
case constitutes fundamental error because it “undermines confidence in the integrity of the
criminal proceeding.” Young, 481 U.S. at 811-14. The appointment of a private probation
company with a pecuniary interest in the outcome of its cases raises similarly fundamental
concerns about fairness and due process.
* * * * *
9
The Department of Justice has a strong interest in ensuring that state and local courts
provide every individual with the basic protections guaranteed by the Constitution and other
federal laws, regardless of his or her financial means. We are eager to build on the December
2015 convening about these issues by supporting your efforts at the state and local levels, and we
look forward to working collaboratively with all stakeholders to ensure that every part of our
justice system provides equal justice and due process.
Sincerely,
Vanita Gupta
Principal Deputy Assistant Attorney General
Civil Rights Division
Lisa Foster
Director
Office for Access to Justice
FINES, FEES, COSTS, INDIGENCE, AND RELATED ISSUES
Developed by the Texas Municipal Courts Education Center Funded by a grant from the Texas Court of Criminal Appeals
AY 18
v. 2
BAIL As a general rule in Texas, bail may not be denied.
4
It is important to distinguish bail set by a magistrate and bail set by a judge. It is well established in Texas case law that ability or inability to make bail
does not, alone, control in determining the amount; it is an element to be
considered along with the others in Art. 17.15, C.C.P.5
While bail should be sufficiently high to give reasonable assurance that the
defendant will
appear, it is not to be
used as an
instrument of
oppression. A defendant in jail
charged with a Class
C misdemeanor
must be released on
personal bond or
reduction of bail if
the State is not ready
for trial within 5
days of
commencement of
detention.6
COURT ACTIONS ON NON PAYMENT
PERMISSIBLE ACTIONS Payment Plan or Extension of
Time to Pay
Community Service Waiver of All or Part of Fines or
Costs if Alternative Means
Impose an Undue Hardship7
Capias Pro Fine (after a show
cause hearing)8
Commitment Hearing Suspension of Driver's License
9
Refusal to Register a Motor
Vehicle10
Collection Services11
Execution Against Property in
Same Manner as in a Civil Suit12
IMPERMISSIBLE ACTIONS
Holding Defendant in Jail on a Capias
Pro Fine Beyond the Business Day
Following the Date of the Arrest
Without the Commitment
Requirements in Art. 45.046, C.C.P.
Commitment to Jail Without
Providing an Opportunity for
Community Service or Without a
Commitment Hearing and Written
Determination under Art. 45.046,
C.C.P.
Requiring a Bond to See the Judge
Refusal to Accept Filings
Altering a Final Judgment (unless by a
nunc pro tunc order for a clerical
error)
1. Article 45.041(a-1), C.C.P.
2. Article 45.041(b-2), C.C.P.
3. Article 45.0491a), C.C.P.
4. Art. I, Sec. 2, Texas Constitution
5. Ex Parte Bufkin, 553 S.W.2d 116,
118 (Tex. Crim. App. 1977).
6. Article 17.151, C.C.P.
7. Article 45.0491, C.C.P.5.
8. Article 45.045(a-2), C.C.P.
9. Article 45.046, C.C.P.
10. Section 706.002, Trans. Code.
11. Section 702.003, Trans. Code.
12. Article 45.047, C.C.P.
IMPOSING FINES, FEES, & COURT COSTS
Make meaningful use of the fine range because after a judgment is final, there is
no statutory authorization to change the fine amount.
If a defendant enters a plea in open court, the judge shall inquire whether the
defendant has sufficient resources or income to immediately pay all or part of
the fines and costs, and upon a determination that the defendant does not, the
judge shall determine whether the fine and costs should be (1) required to be paid at
some later date or in a specified portion at designated intervals; (2) discharged
by performing community service; waived in full or in part; or (3) any combination of
those methods.1
For defendants who do not enter a plea in open court, if the judge determines that the
defendant is unable to immediately pay the fine and costs, the judge shall allow the
defendant to pay the fine and costs in specified portions at designated intervals.2
A judge may require any defendant who is determined by the court to have
insufficient resources or income to pay a fine or costs to discharge all or part of
the fine or costs by performing community service.3
DETERMINING INDIGENCE
Judges have discretion in determining whether a defendant is indigent.
Judges may use the Federal Poverty Guidelines or the Living Wage Calculator as
guidance for an indigence determination.
To determine indigence, a court may require a defendant under oath to provide income and asset information.
When a defendant does not pay all the fine and costs at the time of sentencing, it is important for courts to communicate and
document its expectation to the defendant and what the defendant should do if he or she is unable to pay in the manner
ordered by the judge.
NEW PROCEDURES RELATED TO FINES, FEES, COSTS, AND INDIGENCE
Adapted from the Texas Office of Court Administration Bench Card for Judicial Processes Relating to the Collection of Fines and Costs
All statutory references are to the Code of Criminal Procedure.
I. NEW REQUIREMENT FOR ASSESSING ABILITY TO PAY FOR OPEN COURT PLEAS (Art. 45.041)
A. When imposing a fine and costs on defendant who enters a plea in open court, judge required to inquire whether defendant
has sufficient resources/income to immediately pay all or part of the fine and costs.
B. If judge determines defendant does not have sufficient resources/income, required to determine whether fine/costs should be:
o required to be paid at some later date or in a specified portion at designated intervals;
o discharged through the performance of community service;
o waived in full or part; or satisfied through any combination of these methods.
II. NEW WAIVER OF PAYMENT OPTION; PRESUMPTION OF INDIGENCE FOR CERTAIN CHILDREN (Art. 45.0491)
A. Courts may waive all or part of a fine or costs and must no longer wait for a defendant to default if:
o court determines defendant is indigent or does not have sufficient resources/income to pay all or part of fine or costs or was a child at the time of the offense; and
o discharging the fine or costs through community service (or extension/installments) would impose an undue hardship.
B. A defendant is presumed to be indigent or not have sufficient resources/income to pay all or part of the fine or costs if:
o in conservatorship of the Department of Family and Protective Services or was at the time of the offense; or
o designated as a homeless child or youth or an unaccompanied youth, or was so designated at the time of the offense.
III. NEW JAIL CREDIT RATE (Art. 45.048)
A defendant should be given credit of not less than $100 for each period of confinement (8-24 hours as determined by judge).
IV. NEW REQUIREMENTS FOR ISSUING A CAPIAS PRO FINE (Art. 45.045)
Court may not issue a capias pro fine unless the court first holds a hearing on the defendant’s ability to pay, and:
o the defendant fails to appear at the hearing; or
o based on evidence presented at the hearing, the court determines that the capias pro fine should be issued.
V. NEW REQUIREMENTS AND OPTIONS FOR COMMUNITY SERVICE (Arts. 45.049, 45.0492)
A. Any order requiring a defendant’s performance of community service must:
o specify the number of hours to be performed; and
o include the date by which a defendant must submit proof of completion of the community service hours to the court.
B. Community service options expanded to include (besides service provided to a governmental entity or certain nonprofits):
o attending work and job skills training program, preparatory class for the GED, alcohol or drug abuse program, rehabilitation program, counseling program, mentoring program, or any similar activity;
o attending a tutoring program (for certain juvenile defendants only); and o performing community service for an educational institution or any organization that provides services to the general public
that enhances social welfare and the well-being of the community.
C. 16-hour limit on community service performed each week, unless additional hours will not impose undue hardship.
D. Credit for each eight hours of community service performed is $100 per day.
VI. NEW PROVISIONS RELATING TO BAIL, BOND, AND PRETRIAL RELEASE IN A MUNICIPAL COURT (Arts. 17.42, 45.016)
A. Post-charging, judge may require defendant to give personal bond (without assessment of personal bond fee); however, the
judge may not, either instead of or in addition to personal bond, require defendant to post a bail bond (cash or surety) unless:
o the defendant fails to appear; and
o the judge determines that:
the defendant has sufficient resources or income to give a bail bond; and
a bail bond is necessary to secure the defendant’s appearance in court.
B. If defendant does not post a required bail bond within 48 hours of the court’s order, judge must reconsider bail bond and
presume defendant does not have sufficient resources/income to give the bond; the judge may then require a personal bond.
VII. NEW REQUIREMENT TO RECALL AN ARREST WARRANT FOR FAILURE TO APPEAR AND A CAPIAS PRO FINE
(Arts. 45.014, 45.045)
A. If defendant voluntarily appears and makes a good faith effort to resolve warrant before it is executed, a judge must recall it.
B. The court must recall capias pro fine if defendant voluntarily appears to resolve the amount owed and resolves it.
VIII. NEW REQUIREMENTS FOR PROVIDING NOTICE TO DEFENDANTS
A. Citations must include information on alternatives to full payment of any fine or costs assessed if unable to pay (Art. 14.06(b))
B. No arrest warrant for failure to appear at the initial court setting, unless notice by phone/mail that includes: (Art. 45.014)
o Date/time, within 30-day period following date of notice, when defendant must appear (may request alternative date/time);
o name and address of the court with jurisdiction in the case;
o information regarding alternatives to the full payment of any fine or costs owed by the defendant; and
o an explanation of the consequences of defendant’s failure to appear as required.
C. Upon receiving a plea of “guilty” or “nolo contendere” and waiver of jury trial, must provide notice of: (Art. 27.14(b))
o the amount of any fine or costs assessed in the case;
o if requested by the defendant, the amount of any appeal bond that the court will approve; and
o information regarding the alternatives to the full payment of any fine or costs assessed, if the defendant is unable to pay.
D. Communication to a defendant from a public or private collection vendor must include: (Art. 103.0031(j))
o notice of the person’s right to enter a plea or to demand trial on any offense; and
o a statement that if the person is unable to pay the full amount that is acceptable to the court to resolve the case, the person should
contact the court regarding alternatives to full payment.
What if I Can’t Pay?
You may be concerned if you have been charged with an offense, you do not wish to contest the charge,
and you do not have an ability to pay fines, fees, and court costs at this time. If this is the case, it is very
important to respond to the charge and to continue communication with the court. Failure to respond
to the charge could lead to additional charges filed, additional fees owed, a hold on your driver’s license
or registration, and/or a warrant issued for your arrest. Timely responses and continued communication
with the court will minimize charges filed and fines or fees owed. Additionally, taking care of fine-only
misdemeanor charges will prevent you from being arrested related to the charges. The information
below is provided to give you more information related to the laws and protection provided for those
who have an inability to pay.
Indigence
• If a judges determines that you have an inability to pay due to a lack of resources, the judge will find you to be indigent. Defendants found to be indigent must be given alternative means to discharge their judgments. While there is no definition in the law for indigence, the judge may make a determination by examining your sources of income and your expenses. Helpful information could include pay stubs and bank statements as well as information showing that you receive federal or state assistance.
Alternative Means
• There are currently three alternative means defined under Texas law.
• Installment Payments - The judge may allow you to pay your fines and costs over a period of time at an amount that is manageable to you. Defendants that pay any amount more than 30 days after judgment are required by state law to pay an additional $25 time payment fee. This amount would be added to the total amount owed on your judgment.
• Community Service - A judge may order an indigent defendant to discharge a judgment through community service. At least $50 of your judgment would be discharged for each 8 hours of work you perform for an approved governmental agency or nonprofit organization.
• Tutoring - If you are a child (under the age of 17) who has been charged with a crime committed on the school grounds where you are enrolled, the judge may allow you to discharge your judgment by completing tutoring.
Waiver of Fines and Costs
• Judges may not waive fines and costs as an alternative means of payment. Only after a defendant has defaulted in payment, if the judge determines that the defendant is either indigent or a child, and that community service would impose an undue hardship, may the judge may waive payment of a fine or costs imposed.
What if I'm not Indigent?
• If you have an inability to pay right now, but you are not indigent, the judge may still allow you to pay your judgment at a later date or in installment payments.
Evidence of Indigence
Anytown Municipal Court
During your hearing, you will be asked to present applicable evidence below and testify regarding your financial status. The list of documents below is a comprehensive list of financial information which allows the judge to fully review your ability to pay. No copies will be duplicated or retained as a portion of your court record.
DEFENDANT INFORMATION
Date: Cause #(s)
Name:
Phone#:
Address:
City/ST/Zip:
Income tax return for year immediately preceding your court date
Banking statements for the previous 3 months
Pay stubs from the previous 3 months
Proof of unemployment disposition and benefit, if any
Proof of Social Security Income for any household member
Proof of child support or nonpayment of child support
Proof of utility expenses including electric, gas, water, telephone, garbage, cable, internet, etc.
Proof of housing expense including mortgage payment or rental agreement
Proof of vehicle lease, ownership or other expense related to transportation
Proof of health insurance receipts and other relative medical information
Proof of any governmental financial supplements and assistance including food, housing, and
Medicare subsidies
Proof of private grants or donations including individual payments made other persons
Editor’s Note: This list is only a suggested list of examples a court can use to obtain as much information from the defendant during a hearing about their ability to pay. You may want to remove or add items to suit your individual court’s needs.
BRING ANY OF THE FOLLOWING DOCUMENTS TO YOUR HEARING: *It is important to provide the court with as much detail as possible regarding your ability to pay your fines/costs.
- Living Wage Calculator A rt icles A b o u t Search for a state, city, or metro area 0.
Living Wage Calculation for Austin- Round Rock, TX The li vin g w age sh ow n is the h ourl y ra te tha t an individual must earn to support their family, if they are the sole provider and are working full-time (2080hours per year). All values
are per adult in a family unless otherwise noted. The state minimum wage is the same for all individuals, regardless of how many dependents they may have. The poverty rate is
typically quoted as gross annual income. We have converted it to an hourly wage for the sake of comparison.
For further detail, please reference the technical documentation here.
Typical Expenses The se figure s show the in dividual expenses that went into the living wage estimate. Their values vary by family size, composition, and the current location.
Incarcerated Jail Credit Response Letter ..................................... 194
Defendant’s Motion to Lay Out Fine in Jail ................................ 195
Defendant’s Refusal to Discharge
Fine or Costs by Performing Community Service ....................... 196
INDIGENCE, COMMUNITY SERVICE, PAYMENT PLANS, & JAIL CREDIT 11/17 TMCEC 2017 FORMS BOOK 182
ADMONISHMENT AS TO FINANCIAL CHANGES
CAUSE NUMBER(S):
STATE OF TEXAS § IN THE MUNICIPAL COURT
VS. § CITY OF
§ COUNTY, TEXAS
ALL DEFENDANTS unable to pay the ENTIRE FINE AND COURT COSTS WHEN SENTENCED are
REQUIRED to CAREFULLY READ and ACKNOWLEDGE the following:
TODOS los DEFENDIENTES sin capacidad de pagar LA MULTA COMPLETA Y LOS COSTOS de CORTE despues de la
sentencia, NECESITARAN LEER completamente y RECONOCER lo siguente:
I, the undersigned, acknowledge that until my fines and courts costs are paid in full, I agree to notify the
Court of any changes in my personal financial situation that will likely interfere with my ability to pay
the fine and court costs in the manner ordered by the Judge.
Yo, el infrascrito, reconozco que hasta que mis multas y el costo de corte son completamente pagados yo estoy de
acuerdo en notificar a este juzgado de cualquier cambio en mi situacion financiera o personal que interfiera con mi
capacidad de pagar la multa y costos de corte en la manera ordenada por el Juez.
It is my responsibility to keep the Court informed of my ability to pay the fine and court costs. It is my
responsibility to keep the Court informed in the event of financial hardship.
Es mi responsabilidad de informar a este juzgado de mi capacidad de pagar la multa y los costos de la corte. Es mi
responsabilidad de informar a este juzgado en caso de dificultades economicas.
Depending on the situation, I understand that the Judge may be able to offer me other ways to pay or
earn credit towards my fine and court costs. For the Judge to consider such circumstances, and to
avoid the possibility of being arrested, I am required to provide timely and sufficient proof to the Court.
Dependiendo en la situacion, yo comprendo que el juez podra ofrecerme otras maneras de recivir or ganar credito hacia
la multa y los costos de corte. Para que el juez considere la circumstancia, y para evitar la posibilidad de ser detenido, yo
necesito proveer suficientes y oportunas pruebas a este juzgado.
Defendant’s Signature/Signatura de Defendiente
Signature by Witness
(Court Clerk, Court Administrator, or Other Court Staff)
This the day of , 20 .
INDIGENCE, COMMUNITY SERVICE, PAYMENT PLANS, & JAIL CREDIT 11/17 TMCEC 2017 FORMS BOOK 183
APPLICATION FOR TIME PAYMENT, EXTENSION, COMMUNITY SERVICE, OR WAIVER (Page 1 of 4)
CAUSE NUMBER(S):
STATE OF TEXAS IN THE MUNICIPAL COURT
VS. CITY OF
COUNTY, TEXAS
INITIAL ALL THAT APPLY.
The Court has advised me that I am responsible for satisfying the judgment and sentence:
in the amount of $ in Cause Number ;
in the amount of $ in Cause Number ;
in the amount of $ in Cause Number ; and
in the amount of $ in Cause Number .
I assert that I am unable to pay the fine and costs immediately and that the following information is documentation
that I have insufficient resources or income to pay today.
I request that the Court extend the payment to a later date.
I request that the Court grant a time payment plan.
I request that I be able to discharge the fine and costs by performing community service, because I have no resources to
pay and I am unable to pay the fine and costs.
I have been determined to be indigent by the federal government and I am receiving or I am eligible to receive assistance
under a federal program. Name of program: .
APPLICATION FOR TIME PAYMENT, EXTENSION, COMMUNITY SERVICE, OR WAIVER
Name: Telephone Number:
Address:
Employer: Job Title:
Employer's Address:
Salary: $ per Employer's Telephone Number:
Marital Status (Check One): Married Single Divorced Widowed
Spouse's Name: Spouse's Salary: $ per
Spouse's Employer: Spouse's Job Title:
List the source and amount of any other income you receive: $
List all your dependents, their ages, and their relationship to you:
Your residence is (Check One): Rented Owned Rent-Free
LIST ALL BANK ACCOUNTS IN YOUR NAME OR FROM WHICH YOU MAY WITHDRAW FUNDS:
Name of Institution Address of Institution Type of Account Account Balance
INDIGENCE, COMMUNITY SERVICE, PAYMENT PLANS, & JAIL CREDIT 11/17 TMCEC 2017 FORMS BOOK 184
APPLICATION FOR TIME PAYMENT, EXTENSION, COMMUNITY SERVICE, OR WAIVER (Page 2 of 4)
ESTIMATE YOUR AVERAGE CURRENT MONTHLY EXPENSES FOR YOU AND YOUR FAMILY:
a. Home mortgage payment, rent, or lot rental for trailer: $
b. Routine home maintenance: $
c. Utilities (electricity, water, gas, telephone): $
d. Food and sundries: $
e. Clothing: $
f. Laundry and cleaning: $
g. Newspapers, periodicals, & books, including school books: $
h. Medical, dental, and drug expenses: $
i. Insurance (auto, life, medical, homeowners/renters): $
j. Transportation, including auto payments: $
k. Taxes not deducted from wages or included in mortgage: $
l. Alimony or support payments: $
m. Religious/charitable contributions: $
n. Other expenses (use reverse side if necessary):
$
$
$
$
LIST ALL REAL ESTATE OWNED BY YOU AND YOUR SPOUSE:
LIST THE ESTIMATED VALUE FOR ALL PERSONAL PROPERTY OWNED BY YOU OR YOUR SPOUSE:
a. Deposits in financial institutions and cash on hand: $
b. Household goods and supplies (use reverse side if necessary):
$
$
$
$ $
$ $
$ $
c. Household furniture and furnishings (use reverse side if necessary):
$
$
$
d. Jewelry (use reverse side if necessary):
$
$
$
$ $
$ $
$ $
$ $
$ $
$ $
INDIGENCE, COMMUNITY SERVICE, PAYMENT PLANS, & JAIL CREDIT 11/17 TMCEC 2017 FORMS BOOK 185
APPLICATION FOR TIME PAYMENT, EXTENSION, COMMUNITY SERVICE, OR WAIVER (Page 3 of 4)
e. Sports equipment and musical instruments (use reverse side if necessary):
$
$
$
$ $
$ $
$ $
f. Television, home theater, media, and stereo equipment (use reverse side if necessary):
$
$
$
g. Household appliances (use reverse side if necessary):
$
$
$
$ $
$ $
$ $
$ $
$ $
$ $
h. Automobiles, trucks, trailers, boats, and accessories (use reverse side if necessary):
$
$
$
$ $
$ $
$ $
i. Machinery and tools, lawn and garden equipment (use reverse side if necessary):
$
$
$
$ $
$ $
$ $
j. Office equipment, supplies, furniture, and inventory (use reverse side if necessary):
$
$
$
$ $
$ $
$ $
k. Farming equipment, supplies, livestock, and other animals (use reverse side if necessary):
$
$
$
$ $
$ $
$ $
l. Any other property not listed above (use reverse side if necessary):
$
$
$
$ $
$ $
$ $
INDIGENCE, COMMUNITY SERVICE, PAYMENT PLANS, & JAIL CREDIT 11/17 TMCEC 2017 FORMS BOOK 186
APPLICATION FOR TIME PAYMENT, EXTENSION, COMMUNITY SERVICE, OR WAIVER (Page 4 of 4)
LIST ALL OF YOUR CREDITORS (including credit cards) AND THE AMOUNT YOU OWE EACH
(Use reverse side if necessary):
$ $
$ $
$ $
$ $
$ $
$ $
YOUR INITIAL BY EACH OF THE FOLLOWING STATEMENTS INDICATES THAT YOU HAVE READ THE
STATEMENT, UNDERSTAND IT, AND AGREE TO IT.
I promise that I will notify this Court in person or by first-class mail of any changes of my address or telephone number at the
following address (court address) within five (5) days of the change.
I understand that I have a continuing obligation to notify the Court of any changes in my financial status that may
hinder my ability to satisfy the judgment or help me satisfy the judgment.
I understand that if I pay any part of the fine, costs, or restitution (if applicable) on or after the 31st day after judgment was
entered that I am responsible for paying a $25 time payment fee (Section 133.103, Local Government Code).
I understand that submitting false financial information to the Court constitutes the crime of tampering with a
governmental record, punishable by incarceration and/or the imposition of a fine (Section 37.10, Penal Code). I swear
that all the information in this application is true, correct, and complete to the best of my knowledge and belief.
Date: Defendant’s Signature:
Sworn and subscribed before me this day of , 20 .
(Judge) (Clerk) (Deputy Clerk)
INDIGENCE, COMMUNITY SERVICE, PAYMENT PLANS, & JAIL CREDIT 11/17 TMCEC 2017 FORMS BOOK 187
INSTALLMENT AGREEMENT ORDER
CAUSE NUMBER:
STATE OF TEXAS § IN THE MUNICIPAL COURT
VS. § CITY OF
§ COUNTY, TEXAS
ORDER
ON THIS THE day of , 20 , , the Defendant, having been found guilty by the
Court and assessed a fine of $ and court costs has agreed to pay the fine and costs at designated intervals. The total
amount owed at this time is $ . However, if any portion of the fine or costs is paid on or after the date of
, which is 31 days after the date of judgment, the Defendant shall pay an additional $25 as required by
Section 133.103 of the Local Government Code.
IT IS THEREFORE ORDERED that the Defendant make payments as scheduled by this Order. Each payment will be due and
payable as scheduled until the full amount is paid to the court. If the Defendant is unable to make a payment, the Defendant should
contact the Court immediately. The Defendant is ORDERED to notify the Court of any change of address.
Failure to comply with this order will result in a mandatory hearing and may cause the issuance of a capias pro fine. Article
102.010 of the Code of Criminal Procedure requires a defendant to pay a $50 warrant fee for the execution or processing of an issued
capias pro fine.
SCHEDULED PAYMENTS
IT IS HEREBY ORDERED that the Defendant, , pay the fine and court costs between the
hours of .m. and .m. on the following dates and in the following amounts until the total fine and costs are paid:
Due Dates of Payments Amounts Due
SIGNED AND RENDERED on this day of , 20 .
(municipal court seal) Judge, Municipal Court
City of
The Defendant acknowledges the receipt of a copy of this Order and that the Defendant understands the provisions of this Order
and has the ability to fully comply with this Order. Further, the Defendant understands his/her responsibility to inform the Court of
changes in his/her financial situation that may hinder his/her ability to satisfy either the judgment or any other order of the Court.
The Defendant understands that his/her responsibility terminates only upon satisfaction of the judgment. The Defendant
understands his/her responsibility to notify the Court of any change of address.
Date:
Defendant’s Signature
INDIGENCE, COMMUNITY SERVICE, PAYMENT PLANS, & JAIL CREDIT 11/17 TMCEC 2017 FORMS BOOK 188
SCHEDULE OF PAYMENTS FOR INSTALLMENT AGREEMENT
CAUSE NUMBER:
STATE OF TEXAS
§
IN THE MUNICIPAL COURT
VS. §
§
CITY OF
COUNTY, TEXAS
Cause Number Date to be Paid Further Extensions Date Paid/Receipt Number
Date Defendant's Acknowledgement by Signature
INDIGENCE, COMMUNITY SERVICE, PAYMENT PLANS, & JAIL CREDIT 11/17 TMCEC 2017 FORMS BOOK 189
COMMUNITY SERVICE ORDER (Art. 45.049, C.C.P.)
CAUSE NUMBER:
STATE OF TEXAS
§
IN THE MUNICIPAL COURT
VS. §
§
CITY OF
COUNTY, TEXAS
ORDER
ON THIS DATE appeared , Defendant in the above styled and numbered cause, who, having been
found guilty by the Court and assessed a fine and costs totaling $ in this cause on the day of ,
20 , (and the Court having determined that the Defendant has failed to pay such fine and costs) (and the Court having determined
that the Defendant has insufficient resources or income to pay such fine and costs), it is hereby
ORDERED, ADJUDGED, AND DECREED that the Defendant discharge (all of the fine and costs owed) (the remaining fine
and costs owed) by performing community service as follows:
1. The Defendant shall perform a total of hours;
2. The Defendant's community service shall be completed no later than , 20 ;
3. The Defendant shall perform the community service:
□ by attending a work and job skills training program;
□ by attending a preparatory class for the high school equivalency examination administered under Section 7.111, E.C.;
□ by attending an alcohol or drug abuse program;
□ by attending a rehabilitation program;
□ by attending a counseling program, including a self-improvement program, a mentoring program, or any similar activity;
□ for a governmental entity, non-profit organization, or another organization that provides services to the general public that
enhances the social welfare and general well-being of the community (other organization: );
□ for an educational institution;
4. The Defendant shall submit to the court documentation verifying the Defendant’s completion of the community service by
, 20 ;
and the Court having further found that performing more than 16 hours of community service per week (will)(will not) impose an
undue hardship on the Defendant, it is further
ORDERED, ADJUDGED, AND DECREED that the Defendant shall perform no more than hours per week in
discharging the above-ordered community service. A defendant is considered to have discharged $ of fines or costs for each
eight hours of community service. A defendant may discharge this obligation to perform community service by paying at any time the
fine and costs assessed.
Dated:
(municipal court seal)
Judge, Municipal Court
City of
County, Texas
Editor’s Note: The Court may require the Defendant to discharge a fine and costs at not less than a minimum of $100 for
every eight hours of community service performed. Art. 45.049(e), C.C.P.
For community service orders on children under Article 45.0492 of the Code of Criminal Procedure, see the Judgments &
Orders chapter.
INDIGENCE, COMMUNITY SERVICE, PAYMENT PLANS, & JAIL CREDIT 11/17 TMCEC 2017 FORMS BOOK 190
COMMUNITY SERVICE TIME SHEET
Municipal Court
Address:
, Texas
Telephone:
Fax:
This documentation must be submitted to the court by , 20 .
Community Service Provider: Telephone: Date Assigned:
Name of Defendant Performing Community Service: DOB:
Total Hours Assigned: To be completed by:
Complete hours by ; and then hours by
Cause number(s):
Date Time In Time Out Total Hours Subtotal Hours Supervisor Initials Defendant’s Initials
Community Service Rules
While performing community service, I will:
▪ Contact the provider I choose to arrange community
service as soon as possible;
▪ Arrive on time;
▪ Obey the site supervisor;
▪ Not leave the site without permission;
▪ Not carry any sort of weapon;
▪ Not use abusive language;
▪ Not deliberately destroy or deface any tools or property;
▪ Never accept any tips or cash from anyone in association with
my community service;
▪ Wear appropriate clothing;
▪ Apply for authorization for extension of time if needed;
▪ Contact the Municipal Court with any questions.
I certify that the above record is a true representation of the number of hours performed for the above period by .
Approved by:
Community Service Provider Representative Signature of Defendant Performing
Community Service
WARNING: Filing false information with the Court is a Class A misdemeanor punishable by up to one year in jail and a
maximum fine up to $4,000.
COMMUNITY SERVICE TIME SHEET
INDIGENCE, COMMUNITY SERVICE, JAIL CREDIT, & PAYMENT PLANS 11/17 TMCEC 2017 FORMS BOOK 191
WAIVER OF PAYMENT OF FINES AND COSTS FOR CERTAIN DEFENDANTS AND FOR CHILDREN (Art. 45.0491, C.C.P.)
CAUSE NUMBER:
STATE OF TEXAS
§
IN THE MUNICIPAL COURT
VS. §
§
CITY OF
COUNTY, TEXAS
ORDER
On the day of , 20 , came to be heard Cause Number wherein
, hereinafter called Defendant, was convicted of a misdemeanor offense to
wit: on the day of , 20 and ordered to pay the
fine and costs in the amount of $ (, of which $ has not been satisfied).
After due inquiry and consideration of the facts and circumstances regarding the Defendant’s ability to satisfy the aforementioned
judgment, the Court determines as follows:
1. The Defendant:
□ is indigent or does not have sufficient resources or income to pay all or part of the fine or costs; or
□ was, at the time the offense was committed, a child as defined by Article 45.058, Code of Criminal Procedure; and
2. Discharging the fine or costs under Article 45.049 of the Code of Criminal Procedure or as otherwise authorized by
Chapter 45, would impose an undue hardship on the Defendant.
Accordingly, pursuant to Article 45.0491, Code of Criminal Procedure, the Court waives the (stated) (remaining) fine and costs for
Defendant.
ORDERED, ADJUDGED, AND DECREED.
Entered this day of , 20 .
(municipal court seal) Judge, Municipal Court
City of
County, Texas
Editor’s Note: The 85th Legislature amended Art. 45.0491, C.C.P., providing more leeway to judges concerning fines and costs
imposed on indigent defendants. (H.B. 351/S.B. 1913, 85th Legislature (2017)). If the facts and circumstances warrant it, judges
now have the discretion to waive all or part of the fines and/or court costs imposed on defendants who (1) are indigent or do not
have sufficient resources or income to pay all or part of the fine or (2) were children at the time the offense was committed, if
discharging the judgment through alternative means would be an undue hardship, regardless whether the defendant has defaulted in
discharging the judgment. A defendant is presumed to be indigent or to not have sufficient resources or income to pay all or part of
the fine or costs if the defendant is in the conservatorship of the Department of Family and Protective Services (or was at the time
of the offense) or is designated as a homeless child or youth or an unaccompanied youth, as those terms are defined by 42 U.S.C.
Section 11434a (or was at the time of the offense). (S.B. 1913, 85th Legislature (2017)).
INDIGENCE, COMMUNITY SERVICE, JAIL CREDIT, & PAYMENT PLANS 11/17 TMCEC 2017 FORMS BOOK 192
ORDER WAIVING SURCHARGES FOR INDIGENT DEFENDANT (SEC. 708.158, T.C.)
CAUSE NUMBER:
STATE OF TEXAS § IN THE MUNICIPAL COURT
VS. § CITY OF
§ COUNTY, TEXAS
(Texas Driver’s License # )
(DOB: )
ORDER WAIVING SURCHARGES FOR INDIGENT DEFENDANT
On the of , 20 , Defendant was convicted by this Court of an offense for which surcharges
are assessed under Texas Transportation Code, Chapter 708, to wit: ,
which offense occurred on .
The Court, having heard the evidence presented by the Defendant, and having reviewed all documentation provided,
makes the following findings:
□ The Defendant’s income or the Defendant’s household income does not exceed 125% of the applicable income
level established by the federal poverty guidelines; or
□ The Defendant, or the taxpayer claiming the Defendant as a dependent, receives assistance from one of the
programs outlined in Section 708.158(b)(3) of the Transportation Code.
THE COURT FINDS THE DEFENDANT IS INDIGENT.
This is the Court in which the Defendant was convicted of the offense that is the basis for the surcharge.
It is therefore ORDERED that the Texas Department of Public Safety shall WAIVE all surcharges assessed under
Texas Transportation Code, Chapter 708, for the Defendant as a result of the conviction in the above entitled and numbered
cause.
Judge, Municipal Court Date
(municipal court seal) City of
County, Texas
Editor’s Note: Fax this form to the Department of
Public Safety: 512.424.2740.
INDIGENCE, COMMUNITY SERVICE, JAIL CREDIT, & PAYMENT PLANS 11/17 TMCEC 2017 FORMS BOOK 193
FINDING OF INDIGENCE FOR PURPOSES OF SEC. 706.006, T.C. (OMNIBASE ADMINISTRATIVE FEE)
CAUSE NUMBER:
STATE OF TEXAS § IN THE MUNICIPAL COURT
VS. § CITY OF
§ COUNTY, TEXAS
FINDING
On the day of , 20 , came to be heard Cause Number wherein
, hereinafter called Defendant, was convicted of a misdemeanor offense to
wit: on the day of , 20 and ordered to pay the
fine and costs in the amount of $ , of which $ has not been satisfied.
The Court, having heard the evidence presented by the Defendant, and having reviewed all documentation provided, FINDS the
defendant indigent. Pursuant to Section 706.006(d) of the Transportation Code, the Defendant may not be required to pay an
administrative fee under Section 706.006.
Judge, Municipal Court Date
(municipal court seal) City of
County, Texas
Editor’s Note: For purposes of Section 706.006(d) of the Transportation Code, a person is presumed to be indigent if the
person: (1) is required to attend school full time under Section 25.085 of the Education Code; (2) is a member of a household
with a total annual income that is below 125 percent of the applicable income level established by the federal poverty
guidelines; or (3) receives assistance from: (A) the financial assistance program established under Chapter 31 of the Human
Resources Code; (B) the medical assistance program under Chapter 32 of the Human Resources Code; (C) the supplemental
nutrition assistance program established under Chapter 33 of the Human Resources Code; (D) the federal special supplemental
nutrition program for women, infants, and children authorized by 42 U.S.C. Section 1786; or (E) the child health plan program
under Chapter 62 of the Health and Safety Code. (H.B. 351/S.B. 1913, 85th Legislature (2017)).
INDIGENCE, COMMUNITY SERVICE, JAIL CREDIT, & PAYMENT PLANS 11/17 TMCEC 2017 FORMS BOOK 194
INCARCERATED JAIL CREDIT RESPONSE LETTER
Name
Address
City and State
Date
Dear Sir or Madam:
The Court has received your letter requesting jail credit.
According to the Court’s records, your request for jail credit is for the following cause number(s):
.
To consider your request, the Court requires the following:
1. A plea of either guilty or nolo contendere (no contest) in the cause(s) for which you are seeking jail credit.
2. OFFICIAL DOCUMENTATION stating:
The offense for which you are incarcerated;
The specific name of the facility and location where you are incarcerated;
When you began your incarceration; and
The date your incarceration is scheduled to end.
In response to your request:
□ AT THIS TIME, YOUR REQUEST CANNOT BE CONSIDERED, for the following reason:
□ The Court has not received a plea of guilty or nolo contendere (no contest) in the cause(s) for which you are seeking
jail credit. Please submit the enclosed form entitled Plea Form: By Mail or Delivery to the Court. Upon receipt of
the form, your request shall be considered.
□ The Court has not received OFFICAL DOCUMENTATION (described above).
□ Because you were not incarcerated at the time the Court ordered you to be arrested and/or committed to jail in the above
referenced matter(s), your request for concurrent jail credit is DENIED.
□ Though incarcerated at the time the Court ordered you to be arrested and/or committed to jail in the above referenced
matter(s), the incarceration is unrelated to the matter(s) before this Court, therefore your request for concurrent jail credit
is DENIED. You must complete your current term of incarceration before beginning to earn any jail credit in the above
referenced matters.
□ Because of your incarceration at the time the Court ordered you to be arrested and/or committed to jail in the above
referenced matter(s), the Court GRANTS your request for concurrent jail credit. The Court’s records shall reflect that the
judgment(s) in the above referenced matter(s) are satisfied in full.
Sincerely,
Municipal Judge
City of
INDIGENCE, COMMUNITY SERVICE, JAIL CREDIT, & PAYMENT PLANS 11/17 TMCEC 2017 FORMS BOOK 195
DEFENDANT'S MOTION TO LAY OUT FINE IN JAIL
CAUSE NUMBER:
STATE OF TEXAS § IN THE MUNICIPAL COURT
VS. § CITY OF
§ COUNTY, TEXAS
DEFENDANT'S MOTION TO LAY OUT FINE IN JAIL
On the day of , 20 , I was found guilty of the offense of and was assessed a
fine and court costs totaling $ dollars, of which $ is unpaid.
I understand that I may ask the Court to grant me an extension of time to pay, a payment plan, or community service to discharge the fine and costs for
all or part of the fine and costs. I DO NOT WANT an extension to pay, I DO NOT WANT a payment plan, and I DO NOT WANT to perform
community service to discharge the fine and costs. I REFUSE TO PAY THE FINE AND COSTS ORDERED BY THE COURT.
I understand that I may ask the Court to consider my financial situation to decide if I am indigent. If the Court finds me indigent, I cannot be jailed to
pay the fine and costs. I DO NOT claim that I am indigent. I DO NOT WANT a hearing on whether I am indigent.
I was 17 years old or older when I committed the offense. I am of sound mind. I request the Court to order me to jail immediately. If my request is
granted, I will be given jail credit at not less than 8 hours or more than 24 hours as the period I must remain in jail to satisfy not less than a minimum of
$100 of the fines and costs. I understand that the Judge will determine the rate at which I earn jail credit.
The Court has not encouraged me to make this motion. I understand that I have been convicted of an offense punishable by the imposition
of a monetary fine, not by a term of incarceration. My request to discharge the fine and costs through commitment to jail has not been influenced by
the Court or any individual, other than myself. This motion is made freely and voluntarily.
I have read this entire motion, I understand it, and I agree to sign it and present it to the Judge. I want the Judge to grant this motion and