1. DEFERRED DISPOSITION AND DRIVING SAFETY COURSES
Judge Stewart Milner
City of Arlington Municipal Court
April 10, 2018

2. Deferred Disposition
Article Code of Criminal Procedure

3. Deferred Disposition Always “discretionary” with the Court
After plea of Guilty or Nolo Contendere; or Finding of Guilty after trial
Payment of court costs:
at time of order, in installments, by community service, or any combination
Court defers proceedings for up to 180 days
Sec (a) Requires payment of court costs at time of order granting deferred disposition. However,
Sec (a-1)  Notwithstanding any other provision of law, as an alternative to requiring a defendant charged with one or more offenses to make payment of all court costs as required by Subsection (a), the judge may:
(1)  allow the defendant to enter into an agreement for payment of those costs in installments during the defendant's period of probation;
(2)  require an eligible defendant to discharge all or part of those costs by performing community service under Article ; or

4. Special Expense Fee (SEF)
Amended Article (a) authorizes collection of a “special expense fee” prior to the end of the deferral period.
Prior to 2009, no statutory authority to collect SEF until the end of the deferral period.
Special Expense Fee (SEF) HB 1544 (eff. 9/1/09) (i.e. a dollar amount not to exceed the amount of the fine that could be imposed on the defendant as punishment for the offense.

5. Special Expense Fee (SEF) (cont.)
SEF may be collected at any time before end of the deferral period.
Judge may elect not to impose SEF for good cause shown by defendant.
If Defendant violates probation and Judge orders collection of SEF, amount must be credited toward payment of fine imposed by Judge.
Application of the SEF to payment of the fine was in response to a practice by some courts of assessing a SEF; Then, if the Defendant defaulted, a “fine” would be imposed as well. This “double dipping” was prohibited with the amendment to the statute.

6. Deferred Disposition All fine only Offenses, Except:
Offenses committed in a construction maintenance work zone
DUI and consumption w/2 convictions
Holders of CDL
Accused of state law or city ordinance violations relating to “Motor Vehicle Control”.
Excluding “parking violations”
FMFR?
Exceptions to Deferred:
Offenses committed in a construction maintenance work zone ( T.C.)
DUI and consumption w/2 convictions (Ch. 106 ABC)
Holders of CDL (CCP (f)) (holds or held)

7. Deferred Disposition Conditions (the Judge May Order):
Post bond in amount of fine to secure payment of fine
Pay restitution not to exceed fine
Professional counseling
Diagnostic testing for alcohol or drugs
Psychosocial assessment

8. Deferred Disposition Conditions (cont’d.):
Participate in alcohol and drug abuse treatment or education program
Pay costs for directly or through court costs for any testing, assessment, treatment or education program
Driving Safety Course
Present evidence of compliance with conditions
Any reasonable condition

9. Mandatory DSC as Part of Deferred Disposition
Only applies to “traffic offenses” that are “moving violations”
Applies to Defendant’s under 25
Court may require a course specifically designed for younger drivers. Four hours of class is live/interactive. S.B (Offenses committed after 01/01/2012)
Provisional DL holders are required to be re-examined for DL
Must pay $10 to DPS for Gen. Rev.
Mandatory DSC as Part of Deferred Disposition (Effective 9/1/05)
Does “moving violations” refer to ( (e), TC?
Sec (b-1)(3)  If the defendant holds a provisional license, during the deferral period the judge shall require that the defendant be examined by the Department of Public Safety as required by Section (b)(2), Transportation Code; a defendant is not exempt from the examination regardless of whether the defendant was examined previously.
(b-2)  A person examined as required by Subsection (b-1)(3) must pay a $10 examination fee.
(b-3)  The fee collected under Subsection (b-2) must be deposited to the credit of a special account in the general revenue fund and may be used only by the Department of Public Safety for the administration of Chapter 521, Transportation Code.

10. Deferred Disposition All alcohol offenses (including PI under 21):
Alcohol Awareness Course required (can be drug education program if appropriate)
Community service required (except DUI)
First offense - 8 to 12 hours
Second offense - 20 to 40 hours
Third offense?
Sec (i), ABC: A defendant who is not a child and who has been previously convicted at least twice of an offense to which this section applies is not eligible to receive a deferred disposition .... [Emphasis added].

11. Deferred Disposition Compliance with Terms: Dismissal of Charge
(If dismissed, no conviction reported and case may not be used against person for any purpose. (Kind of!)
Alcohol offenses by minors are still convictions for “enhancement” purposes.
Sec (c)  On determining that the defendant has complied with the requirements imposed by the judge under this article, the judge shall dismiss the complaint, and it shall be clearly noted in the docket that the complaint is dismissed and that there is not a final conviction.
Sec (e) Records relating to a complaint dismissed as provided by this article may be expunged under Article If a complaint is dismissed under this article, there is not a final conviction and the complaint may not be used against the person for any purpose.
Sec (f)(2)  a prior order of deferred disposition for an offense alleged under this section is considered a conviction.

12. Deferred Disposition (Cont’d.)
Failure to Comply with Terms:
Mandatory Show Cause Hearing
Notice in Writing
“Additional Period”
Court may impose judgment or reduce fine if Defendant is 25+
Court MUST impose fine if under 25
Defendant pays fine or may appeal
Sec (c-1)  If the defendant fails to present within the deferral period satisfactory evidence of compliance with the requirements imposed by the judge under this article, the court shall:
(1)  notify the defendant in writing, mailed to the address on file with the court or appearing on the notice to appear, of that failure; and
(2)  require the defendant to appear at the time and place stated in the notice to show cause why the order of deferral should not be revoked.
(c-2)  On the defendant's showing of good cause for failure to present satisfactory evidence of compliance with the requirements imposed by the judge under this article, the court may allow an additional period during which the defendant may present evidence of the defendant's compliance with the requirements.
(d)  If on the date of a show cause hearing under Subsection (c-1) or, if applicable, by the conclusion of an additional period provided under Subsection (c-2) the defendant does not present satisfactory evidence that the defendant complied with the requirements imposed, the judge may impose the fine assessed or impose a lesser fine.  The imposition of the fine or lesser fine constitutes a final conviction of the defendant.  This subsection does not apply to a defendant required under Subsection (b-1) to complete a driving safety course approved under Chapter 1001, Education Code, or an examination under Section (b)(2), Transportation Code.
(d-1)  If the defendant was required to complete a driving safety course or an examination under Subsection (b-1) and on the date of a show cause hearing under Subsection (c-1) or, if applicable, by the conclusion of an additional period provided under Subsection (c-2) the defendant does not present satisfactory evidence that the defendant completed that course or examination, the judge shall impose the fine assessed.  The imposition of the fine constitutes a final conviction of the defendant.

13. Deferred Disposition Reporting to DPS
May not report traffic offenses deferred unless Defendant fails to complete and there is a conviction (Sec , T.C.)
Must report deferrals of all Alcoholic Beverage Code offenses (Sec , A.B.C.)
Reported on DIC-15 when case deferred
Sec.    SUBMISSION OF RECORD PROHIBITED.  (a)  A justice of the peace or municipal judge who defers further proceedings, suspends all or part of the imposition of the fine, and places a defendant on probation under Article , Code of Criminal Procedure, or a county court judge who follows that procedure under Article , Code of Criminal Procedure, may not submit a written record to the department, except that if the justice or judge subsequently adjudicates the defendant's guilt, the justice or judge shall submit the record not later than the seventh day after the date on which the justice or judge adjudicates guilt.
(b)  The department may not keep a record for which submission is prohibited by this section.
(c)  The department may receive a record prepared by a department employee from court records.
Sec.    REPORT OF COURT TO DEPARTMENT OF PUBLIC SAFETY.  (a)  Each court, including a justice court, municipal court, or juvenile court, shall furnish to the Department of Public Safety a notice of each:
(1)  adjudication under Title 3, Family Code, for conduct that constitutes an offense under this chapter;
(2)  conviction of an offense under this chapter;
(3)  order of deferred disposition for an offense alleged under this chapter; and
(4)  acquittal of an offense under Section
(b)  The notice must be in a form prescribed by the Department of Public Safety and must contain the driver's license number of the defendant, if the defendant holds a driver's license.
(c)  The Department of Public Safety shall maintain appropriate records of information in the notices and shall provide the information to law enforcement agencies and courts as necessary to enable those agencies and courts to carry out their official duties. The information is admissible in any action in which it is relevant. A person who holds a driver's license having the same number that is contained in a record maintained under this section is presumed to be the person to whom the record relates. The presumption may be rebutted only by evidence presented under oath.
(d)  The information maintained under this section is confidential and may not be disclosed except as provided by this section. A provision of Chapter 58, Family Code, or other law limiting collection or reporting of information on a juvenile or other minor or requiring destruction of that information does not apply to information reported and maintained under this section.

14. Driving Safety Course and Motorcycle Operator Course
Article
Code of Criminal Procedure

15. “Mandatory” DSC Subsection (b)
vs.
“Discretionary” DSC
Subsection (d)

16. “Mandatory” DSC Subsection (b)
The Judge shall grant DSC if:
Charged with Eligible Offense;
Makes “timely” “election”; and
Meets Statutory Qualifications.
(b)  The judge shall require the defendant to successfully complete a driving safety course approved by the Texas Education Agency or a course under the motorcycle operator training and safety program approved by the designated state agency under Chapter 662, Transportation Code, if:
(1)  the defendant elects driving safety course or motorcycle operator training course dismissal under this article;
(2)  the defendant:
(A)  has not completed an approved driving safety course or motorcycle operator training course, as appropriate, within the 12 months preceding the date of the offense;  or
(B)  does not have a valid Texas driver's license or permit, is a member, or the spouse or dependent child of a member, of the United States military forces serving on active duty, and has not completed a driving safety course or motorcycle operator training course, as appropriate, in another state within the 12 months preceding the date of the offense;
(3)  the defendant enters a plea under Article in person or in writing of no contest or guilty on or before the answer date on the notice to appear and:
(A)  presents in person or by counsel to the court a request to take a course;  or
(B)  sends to the court by certified mail, return receipt requested, postmarked on or before the answer date on the notice to appear, a written request to take a course;
(4)  the defendant:
(A)  has a valid Texas driver's license or permit; or
(B)  is a member, or the spouse or dependent child of a member, of the United States military forces serving on active duty;
(5)  the defendant is charged with an offense to which this article applies, other than speeding at a speed of:
(A)  95 miles per hour or more; or
(B)  25 miles per hour or more over the posted speed limit;  and
(6)  the defendant provides evidence of financial responsibility as required by Chapter 601, Transportation Code.

17. Mandatory DSC Applies to offenses:
within jurisdiction of municipal or justice courts;
involving operation of motor vehicles.
Defined as:
  Disobeying Warning Signs and Barricades (Sec )
  “Rules of the Road” violations (Sec )
  Juvenile offenses for same violations (Sec (a)(3))
Section : Obeying Warning Signs and Barricades
Subtitle C, Title 7 (Sec “Rules of the Road”); or
Section (a)(3): “other than an offense punishable by imprisonment or by confinement in jail under Section , , , or ”;

18. Ineligible Offenses DSC not available for:
Speeding 25 mph over limit or over 95 mph
Passing a school bus
Hit and Run Offenses (Occupied Vehicles)
Serious Traffic Violations (CMV)
Construction Zone While Workers Present
Subtitle C Rules of Road
Not including Seatbelt and Inspection Offenses
Offense Committed by CDL holders (“Held-ers” too!)
(b)(5)  the defendant is charged with an offense to which this article applies, other than speeding at a speed of:
(A)  95 miles per hour or more; or
(B)  25 miles per hour or more over the posted speed limit.  
(p) … The right to complete a course does not apply to a defendant charged with:
(1) a violation of Section (passing school bus), § (hit and run), or § (fail to stop and render aid);
(2) a serious traffic violation; (commercial vehicle violations defined by §522.03(25)); or
(3) an offense to which § (construction zone ) or § (b) (construction zone).

19. Mandatory DSC – “Timely”
What constitutes “Timely”?
Before the Answer Date
Mailbox Rule Art , C.C.P.
If mailed on or before answer date
Must be received within 10 days of answer date
Keep envelope
Legible postmark is evidence of receipt
(b)(3) the defendant enters a plea under Article in person or in writing of no contest or guilty on or before the answer date on the notice to appear and:
(A)  presents in person or by counsel to the court a request to take a course;  or
(B)  sends to the court by certified mail, return receipt requested, postmarked on or before the answer date on the notice to appear, a written request to take a course;

20. Mandatory DSC – “Election”
What constitutes an Election?
In Person
By Attorney
By Certified Mail
(b)(3) the defendant enters a plea under Article in person or in writing of no contest or guilty on or before the answer date on the notice to appear and:
(A)  presents in person or by counsel to the court a request to take a course;  or
(B)  sends to the court by certified mail, return receipt requested, postmarked on or before the answer date on the notice to appear, a written request to take a course;

21. Mandatory DSC - Qualifications
Who qualifies for Mandatory DSC?
Evidence of Financial Responsibility
“Under Chapter 601 of Trans. Code”
Texas Drivers License
Or, if no Texas DL but:
U.S. Military (Including spouse and dependents)
Active Duty
No DSC / MOC in any state in last 12 mos. prior date of offense
(b)(2) the defendant:
(A)  has not completed an approved driving safety course or motorcycle operator training course, as appropriate, within the 12 months preceding the date of the offense;  or
(B)  does not have a valid Texas driver's license or permit, is a member, or the spouse or dependent child of a member, of the United States military forces serving on active duty, and has not completed a driving safety course or motorcycle operator training course, as appropriate, in another state within the 12 months preceding the date of the offense;

22. “Discretionary” DSC Subsection (d)
The Judge may grant DSC to a Defendant even if Defendant does not qualify under normal circumstances.
(d)
45.051
Sec (d) Notwithstanding Subsections (b)(2) and (3), before the final disposition of the case, the court may grant a request to take a driving safety course or a motorcycle operator training course under this article.

23. Discretionary DSC Under 45.0511(d), the Judge may grant DSC even if:
Defendant has completed DSC in past 12 months.
Request is untimely (but before Final Disposition)
REMEMBER - If not eligible under Sec , Judge generally MAY allow DSC as a Condition of Deferred Disposition (Sec )

24. DSC-Fees Mandatory (45.0511(b)) Discretionary (45.0511(d))
no more than $10, plus Court Costs
Discretionary ( (d))
SEF up to amount of fine, plus Court Costs
No refunds if course not taken
Sec (f) In addition to court costs and fees authorized or imposed by a law of this state and applicable to the offense, the court may:
(1) require a defendant requesting a course under Subsection (b) to pay an administrative fee set by the court to cover the cost of administering this article at an amount of not more than $10; or
(2) require a defendant requesting a course under Subsection (d) to pay a fee set by the court at an amount not to exceed the maximum amount of the fine for the offense committed by the defendant.
Sec (g) A defendant who requests but does not take a course is not entitled to a refund of the fee.

25. Safety Seats and Seatbelts
Violations of & (b), T.C.
“Specialized” DSC w/4 hours of Instruction “Encouraging Use of Child Seats and Seatbelts”
Can take Specialized DSC even if defendant had regular DSC within last 12 months
DL record must show no special DSC in last 12 months
(i) , T.C.  A judge, acting under Article , Code of Criminal Procedure, who elects to defer further proceedings and to place a defendant accused of a violation of Subsection (b) on probation under that article, in lieu of requiring the defendant to complete a driving safety course approved by the Texas Education Agency, shall require the defendant to attend and present proof that the defendant has successfully completed a specialized driving safety course approved by the Texas Education Agency under the Texas Driver and Traffic Safety Education Act (Article 4413(29c), Vernon's Texas Civil Statutes) that includes four hours of instruction that encourages the use of child passenger safety seat systems and the wearing of seat belts and emphasizes:
(1)  the effectiveness of child passenger safety seat systems and seat belts in reducing the harm to children being transported in motor vehicles; and
(2)  the requirements of this section and the penalty for noncompliance.
Sec (u), C.C.P.  The requirement of Subsection (b)(2) does not apply to a defendant charged with an offense under Section , Transportation Code, if the judge requires the defendant to attend and present proof that the defendant has successfully completed a specialized driving safety course that includes four hours of instruction that encourages the use of child passenger safety seat systems, and any driving safety course taken by the defendant under this section within the 12 months preceding the date of the offense did not include that training.  The person's driving record under Subsection (c)(2) and the affidavit of the defendant under Subsection (c)(3) is required to include only previous or concurrent courses that included that training.

26. DSC-Notification Citation must have required notice:
“You may be able to require that this charge be dismissed by successfully completing a driving safety course or a motorcycle operator training course. You will lose that right if, on or before your appearance date, you do not provide the court with notice of your request to take the course.”
No Notice = “Mandatory DSC” continues until notice is given
Sec (q) A notice to appear issued for an offense to which this article applies must inform a defendant charged with an offense under Section , Transportation Code, an offense under Subtitle C, Title 7, Transportation Code, or an offense under Section (a)(3), Transportation Code, committed while operating a motor vehicle of the defendant's right to complete a driving safety course or, if the offense was committed while operating a motorcycle, of the defendant's right to complete a motorcycle operator training course. The notice required by this subsection must read substantially as follows:
Sec (r) If the notice required by Subsection (q) is not provided to the defendant charged with the offense, the defendant may continue to exercise the defendant's right to take a driving safety course or a motorcycle operator training course until the notice required by Subsection (q) is provided to the defendant or there is a final disposition of the case.

27. DSC – Processing Court enters judgment on plea; Collects costs;
Defers imposition of judgment for 90 days
During deferral period, Defendant must present:
Certificate of Completion
Driving Record as maintained by DPS
“Valet DSC” (alt. method under (c-1) Texas On-Line)
Affidavit of Eligibility
Including Military Affidavit
Sec (c)  The court shall enter judgment on the defendant's plea of no contest or guilty at the time the plea is made, defer imposition of the judgment, and allow the defendant 90 days to successfully complete the approved driving safety course or motorcycle operator training course and present to the court:
(1)  a uniform certificate of completion of the driving safety course or a verification of completion of the motorcycle operator training course;
(2)  unless the judge proceeds under Subsection (c-1), the defendant's driving record as maintained by the Department of Public Safety, if any, showing that the defendant had not completed an approved driving safety course or motorcycle operator training course, as applicable, within the 12 months preceding the date of the offense;
(3)  an affidavit stating that the defendant was not taking a driving safety course or motorcycle operator training course, as applicable, under this article on the date the request to take the course was made and had not completed such a course that is not shown on the defendant's driving record within the 12 months preceding the date of the offense; and
(4)  if the defendant does not have a valid Texas driver's license or permit and is a member, or the spouse or dependent child of a member, of the United States military forces serving on active duty, an affidavit stating that the defendant was not taking a driving safety course or motorcycle operator training course, as appropriate, in another state on the date the request to take the course was made and had not completed such a course within the 12 months preceding the date of the offense.
Sec (c-1)  In this subsection, "TexasOnline" has the meaning assigned by Section , Government Code.  As an alternative to receiving the defendant's driving record under Subsection (c)(2), the judge, at the time the defendant requests a driving safety course or motorcycle operator training course dismissal under this article, may require the defendant to pay a fee in an amount equal to the sum of the amount of the fee established by Section , Transportation Code, and the TexasOnline fee and, using TexasOnline, may request the Texas Department of Public Safety to provide the judge with a copy of the defendant's driving record that shows the information described by Section (b), Transportation Code.  As soon as practicable and using TexasOnline, the Texas Department of Public Safety shall provide the judge with the requested copy of the defendant's driving record.  The fee authorized by this subsection is in addition to any other fee required under this article.  If the copy of the defendant's driving record provided to the judge under this subsection shows that the defendant has not completed an approved driving safety course or motorcycle operator training course, as appropriate, within the 12 months preceding the date of the offense, the judge shall allow the defendant to complete the appropriate course as provided by this article.  The custodian of a municipal or county treasury who receives fees collected under this subsection shall keep a record of the fees and, without deduction or proration, forward the fees to the comptroller, with and in the manner required for other fees and costs received in connection with criminal cases.  The comptroller shall credit fees received under this subsection to the Texas Department of Public Safety.

28. DSC – Compliance On proof of Completion:
Court removes judgment
Reports to DPS date of completion
DSC certificates are not “uniform” in appearance
Court may only dismiss one charge for each completion

29. DSC - Failure to Comply Show Cause Hearing
Court notifies Defendant in writing:
of failure to comply
of time of hearing
of place of hearing
Court “requires” Defendant to appear
Contempt for Failure to Appear???
Sec (i) If a defendant requesting a course under this article fails to comply with Subsection (c), the court shall:
(1) notify the defendant in writing, mailed to the address on file with the court or appearing on the notice to appear, of that failure; and
(2) require the defendant to appear at the time and place stated in the notice to show cause why the evidence was not timely submitted to the court.

30. DSC - Show Cause Hearing
If Defendant Appears, Court may:
Allow extension of time to comply; or
Impose judgment on underlying charge
Defendant may pay the fine or appeal
Sec (l) When a defendant complies with Subsection (c), the court shall:
(1) remove the judgment and dismiss the charge;
(2) report the fact that the defendant successfully completed a driving safety course or a motorcycle operator training course and the date of completion to the Texas Department of Public Safety for inclusion in the person's driving record; and
(3) state in that report whether the course was taken under this article to provide information necessary to determine eligibility to take a subsequent course under Subsection (b).

31. DSC - Show Cause Hearing
If Defendant Fails to Appear, Court may:
Impose judgment on underlying charge;
Require immediate payment of outstanding fine;
If immediate, Issue Capias Pro Fine
Sec (j) If the defendant fails to appear at the time and place stated in the notice under Subsection (i), or appears at the time and place stated in the notice but does not show good cause for the defendant's failure to comply with Subsection (c), the court shall enter an adjudication of guilt and impose sentence.
Sec (k) On a defendant's showing of good cause for failure to furnish evidence to the court, the court may allow an extension of time during which the defendant may present:
(1) a uniform certificate of course completion as evidence that the defendant successfully completed the driving safety course; or
(2) a verification of course completion as evidence that the defendant successfully completed the motorcycle operator training course.

32. Questions? Comments? Concerns?
Stewart Milner
Complaints? Criticisms?