Wednesday, May 29, 2013

Outside the box and over the line

Chapter 45 of the Texas Code of Criminal Procedure lays out the procedural rules for the handling of Class C misdemeanors in municipal and justice courts. A defendant may appeal an adverse verdict in justice court or in a municipal court that is not a court of record simply by filing an appeal bond with the trial court.

Provided the appeal bond is posted no more than ten days after the judgment is entered, the appeal is perfected and the case goes up to the county court for a trial de novo. In other words, the appeal is treated as a brand new case.

In Texas the holder of a commercial driver's license isn't eligible for dismissal at the municipal or justice court level through the completion of a driver safety course or through a successful deferred probation - even if he was driving his private car at the time he was stopped and cited. However, there is no apparent prohibition on the county courts when handling an appeal. Now, federal regulations seems to prohibit the so-called "masking" of citations issued to CDL holders and the County Court judge up there refuses to allow a CDL holder to have his citation dismissed through deferred probation.

As an aside, I would argue that the rules only prevent the masking of a conviction by deferring imposition of sentence or allowing the driver to enter into a diversion program. If there is no conviction, however, there is nothing to mask.

Now why, might you ask, am I writing about appeals from traffic tickets? And, if you are asking that - it's a good question.

This morning when I left the courthouse I ran into a colleague of mine who is a municipal court judge in a couple of towns on the outskirts of Houston. He's also a defense attorney with whom I worked on a theft case before. I asked him how life on the bench was treating him and we got to talking about the world of Class C misdemeanors.

We both agreed that if you have a case with a CDL holder in justice or municipal court that there is no reason not to try it. The worst possible outcome is you lose and appeal it up and see it magically disappear at the county court level. He said got so tired of people pleading no contest at the municipal court level and immediately filing an appeal bond that he changed the plea papers in his courtroom.

Now in at least one of the courts in which he sits whenever someone not eligible for dismissal through a driver safety class or deferred probation pleads no contest, the paperwork he signs includes a waiver of his right to appeal.

Hmmm. I don't think we get to go there, my friend. Article 45.042 states that an appeal from a municipal court (that's not a court of record) or a justice court are to be heard de novo by the county court. Article 45.0425 states that to appeal an adverse verdict out of a municipal court (that's not a court of record) or justice court, the defendant must post an appeal bond in an amount not less than twice the fine. Finally, article 42.0426 states that the appeal bond must be filed not less than ten days after the date the judgment was entered and that if it is, and the bond meets the requirements of the code, the appeal is perfected and the case is sent up to the county court.

There is nothing in the code that says you can't appeal an adverse judgment after pleading no contest. There is nothing in the code that says you have to get the judge's permission in order to file an appeal bond. There is nothing, in fact, that gives a judge any discretion in the matter. If the bond is filed and is proper - the case goes up. Otherwise, the judgment stands.

The judge has overstepped his bounds and imposed a restriction on those appearing in his court that is not allowed under Chapter 45 of the Code of Criminal Procedure. His new policy deprives folks of their statutory right to appeal an adverse judgment. His pronouncement violates the separation of powers in that he is usurping the role of the legislature.

I'm not going to go into my rant about petty tyrants run amok because he is one of the few municipal court judges who doesn't act like a cash register clerk for the city. He tries to do the right thing when he's sitting on the bench. But this time, he got it wrong.

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