Warrants & Capias Pro Fines Katie Chancia Staff Attorney, Harris County Justice Courts

The Basics How are the Arrest Warrant, the Capias, and the Capias Pro Fine similar? All are writs All result in arrest All trigger 4th Amendment protections All require probable cause Art. 15.22. A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.

The Basics How are they different? Issued either by a magistrate or a judge Issued at different stages of a criminal proceeding Instruct the officer to do different things Require different action by the court upon execution

HB 3060 (2007) The Capias Clean Up Bill ALL RESULT IN SEIZURE; BUT ARE NOT THE SAME Arrest Warrant – issued by magistrate (not judge) Ch 15 Ch 17 – surety surrenders principal Capias – issued by judge (not magistrate) Ch 23 – bond forfeiture (pre judgment) Ch 43 – procuring custody of defendant (post judgment) Capias Pro Fine – issued by judge (not magistrate) Chs 43 and 45 – post judgment enforcement for fines and/or court costs ONLY

ARREST WARRANT - Article 15.01 A written order from a magistrate, directed to a peace officer or some other person specially named, commanding him to take the body of the person accused of an offense, to be dealt with according to law. Chapter 15 Verbal order of arrest is proper Officer swears under oath (probable cause affidavit) CCP authorizes arrest Chapter 17 When surety surrenders principal (pre-filing of formal charging instrument) Chapter 17: if before filing of formal charging instrument, it’s an arrest warrant; if after filing of formal complaint, it’s a capias (see Chapter 23) - Article 15.01

Our exception… Article 45.014 arrest warrant Issued by municipal judges and justices of the peace Upon filing of sworn complaint or probable cause affidavit Before judgment Commanding that the body of the accused be taken and brought before the authority issuing the warrant, at the time and place stated in the warrant Arrestee can be taken to court or to jail Sufficient if: -issued in the name of the State of Texas -directed to the proper peace officer or some other person specifically named in the warrant -includes a command that the accused be taken and brought before the authority issuing the warrant, at the time and place stated in the warrant -states the name of the accused or describes the person as in the complaint -states the person is accused of some offense, naming the offense -signed by judge or justice naming the office This is the only time in the CCP that a warrant is issued by a judge and not a magistrate Art. 45.014. WARRANT OF ARREST. (a) When a sworn complaint or affidavit based on probable cause has been filed before the justice or municipal court, the justice or judge may issue a warrant for the arrest of the accused and deliver the same to the proper officer to be executed. (b) The warrant is sufficient if: (1) it is issued in the name of "The State of Texas"; (2) it is directed to the proper peace officer or some other person specifically named in the warrant; (3) it includes a command that the body of the accused be taken, and brought before the authority issuing the warrant, at the time and place stated in the warrant; (4) it states the name of the person whose arrest is ordered, if known, or if not known, it describes the person as in the complaint; (5) it states that the person is accused of some offense against the laws of this state, naming the offense; and (6) it is signed by the justice or judge, naming the office of the justice or judge in the body of the warrant or in connection with the signature of the justice or judge. (c) Chapter 15 applies to a warrant of arrest issued under this article, except as inconsistent or in conflict with this chapter. (d)  In a county with a population of more than two million that does not have a county attorney, a justice or judge may not issue a warrant under this section for an offense under Section 32.41, Penal Code, unless the district attorney has approved the complaint or affidavit on which the warrant is based. Chapter 15 applies except as inconsistent or in conflict with this chapter – so rather than take before magistrate, would take before judge. Warrant supposed to contain a time to be brought before judge (maybe to insure judge would be at the court). No out-of-county arrests on Chapter 45 warrants?

NEW NOTICE REQUIREMENT!!! A justice or judge may not issue an arrest warrant for the defendant’s failure to appear at the initial court setting, including failure to appear as required by the citation, unless: The judge provides by telephone or regular mail to the defendant notice that includes: The court’s name and address

and… the defendant fails to appear - Article 45.014(e) A new court date and time, within 30 days of when the notice is provided, when the defendant must appear Defendant may request an alternative date and time Information regarding alternatives to full payment of fine or costs owed by the defendant, if unable to pay that amount An explanation of consequences if the defendant fails to appear as required and… the defendant fails to appear - Article 45.014(e)

New recall requirement!!! A justice or judge shall recall an arrest warrant for the defendant’s failure to appear if the defendant voluntarily appears and makes a good faith effort to resolve the arrest warrant before the warrant is executed - Article 45.014(g)

NEW BOND REQUIREMENT!!! The justice or judge may require the defendant to give a PERSONAL BOND to secure the defendant’s appearance The judge may not, either instead of or in addition to the personal bond, require a defendant to give a bail bond unless: the defendant fails to appear with respect to the applicable offense and the judge determines the defendant has sufficient resources or income to give a bail bond and a bail bond is necessary to secure the defendant’s appearance - Article 45.016(b) Art. 45.016. PERSONAL BOND; BAIL BOND. (a) The justice or judge may require the defendant to give a personal bond to secure the defendant's appearance in accordance with this code. (b) The justice or judge may not, either instead of or in addition to the personal bond, require a defendant to give a bail bond unless: (1) the defendant fails to appear in accordance with this code with respect to the applicable offense; and (2) the justice or judge determines that: (A) the defendant has sufficient resources or income to give a bail bond; and (B) a bail bond is necessary to secure the defendant’s appearance in accordance with this code. (c) If before the expiration of a 48-hour period following the issuance of the applicable order a defendant described by Subsections (b)(1) and (2) does not give a required bail bond, the justice or judge: (1) shall reconsider the requirement for the defendant to give the bail bond and presume that the defendant does not have sufficient resources or income to give the bond; and (2) may require the defendant to give a personal bond. (d) If the defendant refuses to give a personal bond or, except as provided by Subsection (c), refuses or otherwise fails to give a bail bond, the defendant may be held in custody.

may require the defendant to give a personal bond If before the expiration of a 48-hour period, a defendant does not give the required bail bond, the judge: shall reconsider the requirement and presume that the defendant does not have sufficient resources or income to give the bond and may require the defendant to give a personal bond - Article 45.016(c)

FTA vs. VPTA Statutory Authority Penal Code § 38.10 Transportation Code § 543.009 Scope ∆ released from custody under order to appear Δ signed citation for Rules of the Road offense Fine Range $1 - $500 $1 - $200 Azeez v. State, 248 SW3d 182 (Tex. Crim. App. 2008)

CAPIAS A writ issued by a judge of the court having jurisdiction of a case after commitment or bail and before trial and directed to any peace officer, commanding him to arrest a person accused of an offense and bring him before that court immediately or at a stated time. “A writ that is issued by a court having jurisdiction of a case after judgment and sentence and directed to any peace officer of the State of Texas and commanding the officer to arrest a person convicted of an offense and bring the arrested person before that court immediately or on a day or at a term stated in the writ.” - Article 43.015 - Article 23.01

CAPIAS PRO FINE - Article 43.015 A writ issued by a court having jurisdiction of a case after judgment and sentence for unpaid fine and costs, directed to any peace officer and commanding him to arrest the person convicted of the offense and bring him before that court immediately. 43.015: Capias pro fine is directed "To any peace officer of the State of Texas" and commanding the officer to arrest a person convicted of an offense and bring the arrested person before that court immediately. 43.05: A capias pro fine authorizes a peace officer to place the defendant in jail until the business day following the date of the defendant's arrest if the defendant cannot be brought before the court immediately. 43.06: A capias or capias pro fine may be issued to any county in the State, and shall be executed and returned as in other cases, but no bail shall be taken in such cases. Art. 43.021.  CAPIAS OR CAPIAS PRO FINE IN ELECTRONIC FORM. A capias or capias pro fine may be issued in electronic form. - Article 43.015

Capias Pro Fine States the amount of the judgment and sentence Commands a peace officer to bring the defendant before the court immediately or place the defendant in jail until the defendant can be brought before the court Or before another municipal court in the same city or another justice court in the same county Can be electronic broadcast Article 45.045 43.015: Capias pro fine is directed "To any peace officer of the State of Texas" and commanding the officer to arrest a person convicted of an offense and bring the arrested person before that court immediately. 43.05: A capias pro fine authorizes a peace officer to place the defendant in jail until the business day following the date of the defendant's arrest if the defendant cannot be brought before the court immediately. 43.06: A capias or capias pro fine may be issued to any county in the State, and shall be executed and returned as in other cases, but no bail shall be taken in such cases. Art. 43.021.  CAPIAS OR CAPIAS PRO FINE IN ELECTRONIC FORM. A capias or capias pro fine may be issued in electronic form.

JUDGMENT + DEFAULT Jones v. State …because a judgment against a defendant signifies a finding beyond a reasonable doubt that he has committed the charged offense… a judgment for a traffic violation, together with a finding by the court that the defendant has failed to satisfy its terms, will comprise sufficient probable cause to support issuance of the capias pro fine… JUDGMENT + DEFAULT Makes arrangements to pay and fails to pay Fails to perform community service in lieu of payment Pays with a check that has insufficient funds in the bank or pays with a credit card and there is a chargeback Judgments of contempt Jones v. State, 119 SW3d 766 (Tex. Crim. App. 2003) HB 3060 – Broadened Scope of Capias Pro Fine Can Now be Used by All Trial Courts Previously only applied in misdemeanors District Courts were excluded to enforce judgments of contempt imposing only a fine Previously ONLY applied to “Defendants” (excluded contemnors) Expands scope of capias pro fine

NEW HEARING REQUIREMENT!!! The court may not issue a capias pro fine for the defendant’s failure to satisfy the judgment according to its terms unless the court holds a hearing on the defendant’s ability to satisfy the judgment and… the defendant fails to appear at the hearing or based on evidence presented at the hearing, the court determines that the capias pro fine should be issued - Article 45.045(a-2)

NEW RECALL REQUIREMENT!!! The court shall recall a capias pro fine if, before the capias pro fine is executed, the defendant voluntarily appears to resolve the amount owed and the amount owed is resolved in any manner authorized by this chapter. - Article 45.045(a-3)

Arrest for Out of County Offenses Article 15.18 only applies to magistrates taking pleas on out-of- county Class C misdemeanors Article 15.18 is expressly inapplicable to capias pro fines Problem of arrests in other counties: Order to take defendant before the issuing judge, yet arrested and taken before magistrate, then released on bail or time served by other magistrate – not contemplated in law Art. 43.06.  CAPIAS OR CAPIAS PRO FINE MAY ISSUE TO ANY COUNTY. A capias or capias pro fine may be issued to any county in the State, and shall be executed and returned as in other cases, but no bail shall be taken in such cases. Why? It’s a post-judgment enforcement

Commitment orders Judge must determine either that: defendant is not indigent and has failed to make a good faith effort to discharge the fine or costs or defendant is indigent and could have discharged the fine or costs by community service without undue hardship, but has failed to make a good faith effort to do so Must be in writing Issued after a hearing A certified copy of the judgment, sentence, and commitment order is sufficient to authorize such confinement - Article 45.046

Alternative Procedure Court may adopt an alternative procedure under which: a peace officer who executes a capias pro fine shall inform the defendant of the possibility of making an immediate payment of the fine and costs by debit/credit card and of the defendant’s available alternatives to making an immediate payment - Article 103.0025

A defendant placed in jail on account of failure to pay the fine and costs shall be discharged on habeas corpus by showing that the defendant: is too poor to pay the fine and costs; or has remained in jail a sufficient length of time to satisfy the fine and costs at the rate specified by the convicting court now at least $100 per period / period is 8 to 24 hours

A CPF may NOT be issued for a person convicted for an offense committed as a child unless: the defendant is 17 years or older; the defendant was held in juvenile contempt; AND the court finds that issuance of the CPF is justified after considering: the defendant’s sophistication and maturity; the defendant’s criminal record; and the reasonable likelihood of bringing about discharge of the judgment through other procedures and services currently available to the court Juveniles and CPFs

Any questions?

SB 1913 / HB 351 CLEAN UP: Proposed HB 465 Courts must consider only present ability to pay Clarifies that defendants who voluntarily appear to resolve a Class C cases may not be arrested during, immediately before or after appearance for a Class C warrant or CPF Defendant requested inability to pay hearings (which triggers requirement to recall any CPF) Defines undue hardship for community service purposes Separates fines and costs for purposes of community service and waiver Limits Omni fee to one per person per city/county