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.

(In)justice of the peace

We would like to think our judges have a least a little knowledge of the law. We would assume a judge would also be an attorney. It would make sense, wouldn't it?

But, in Texas you can be a judge even if you aren't a lawyer. Justices of the Peace preside over a docket consisting of traffic code violations and other Class C misdemeanors as well as small claims cases and other civil cases if the amount in dispute is under $10,000. They also perform weddings and, in some counties, act as coroner (without the need for any formal medical training).

Michael McCleary is a justice of the peace in Brazos County. Mr. McCleary is not a judge. And, should you ever set foot in his court, that fact will be readily apparent.

I recently represented a truck driver who got a speeding ticket in Brazos County a few years ago. Prior to trial I faxed a subpoena to the court for service on the state trooper who wrote the ticket. I received a response back that the county attorney said I needed to serve the subpoena myself or issue a public information request.

Now this concerned me for two reasons. First, why were the judge and the county attorney discussing what to do with the subpoena request I had filed with the court? Does the phrase ex parte communication mean nothing in Brazos County? Second, my client was charged with a criminal offense and has a right to compulsory service.

So I sent a letter to Mr. McCleary informing him that the court's refusal to serve my subpoena violated my client's due process rights. The response I received made it clear that no one in that court had any clue what the words due process meant either.

When I pressed the matter I was informed that the court would serve my subpoena - but only if I paid a $75 fee for each item requested (for a total of $450). Once again I fired off a response that the court doesn't get to charge a defendant in a criminal case to serve a subpoena. And, once again, the response I got back indicated that a lack of intelligence won't hold anyone back in Brazos County.

And so, as a Christmas present, after my client was convicted in a trial that was rigged from the get-go, I handed Mr. McCleary a copy of the complaint I had filed the previous day with the State Commission on Judicial Conduct.

I would like to think that something might happen as a result - but I know too much to expect anything to come of it.

But the problems go much deeper than one judge who wouldn't recognize the Bill of Rights, or Code of Criminal Procedure, if it landed in his lap. The problem is allowing non-lawyers to preside over criminal cases in which a citizen's livelihood could be at stake. No, a traffic citation is nowhere near as serious as a murder case, but the consequences of a conviction can be severe, nonetheless. When a conviction for speeding can cause a driver to lose his job, I don't think it's too much to ask that a qualified judge be sitting on the bench.

And when a justice of the peace is either ignorant of the law or just chooses to ignore it, the citizen accused of speeding isn't being afforded his constitutional rights. Sure, it's not a "court of record" so any adverse verdict can be appealed to the county court for a new trial - but then we're talking about even more money being shelled out to get something that approaches "justice." That remedy is no excuse for continuing the dog-and-pony show you can see any day in any rural county across this state.

If you want a non-lawyer serving as justice of the peace to perform weddings and to agree with the police that someone is actually dead - that's fine. But, please, don't allow him to preside over a criminal trial.

Turnabout is fair play

Apparently my posts about Precinct 5 Justice of the Peace candidate George Huntoon have struck a raw nerve in some. I have received numerous telephone calls from Mr. Huntoon about the posts wanting to give me his side of the story. I even told him that I would be willing to run his explanation of the events - unedited - if he chose to send it to me. I'm still waiting.

Now first I need to make a correction to "Is JP candidate up to his waist in water?" (Feb. 28, 2010) - the water in question was not stolen from the City of Houston, the water was stolen from the Harris Galveston Subsidence District. As far as the allegations themselves, well, here is what I gathered from my conversation with Mr. Huntoon last week.

The taped conversation I posted was between Mr. Huntoon and Alex Constantin, who is now deceased. Mr. Huntoon claims that Mr. Constantin was harassing him "constantly." He told me that about 100 people in the subdivision (Shadowlake) lived on a lake and were griping to him because the lake needed to be filled. Mr. Huntoon said he made the phone call to "throw a bone" to Mr. Constantin and because he had "too much time" on his hands. He denied the phone call had anything to do with stolen water.

Mr. Huntoon said he left the board of the Shadowlake Homeowners' Association before the theft. He claimed one of the homeowners, Zair Khan (Mr. Huntoon could not provide me with the correct spelling of the name) cut the PVC pipe and rerouted the water. He said the well was located just ten feet behind this person's house.

He kept coming back to asking why he would want to do anything for these folks whom he claimed had been harassing him. He said he wanted them to be miserable. To be fair, Mr. Huntoon was never charged with the theft. He said Sgt. Larry Buzo said there wasn't enough evidence to charge anyone.

"There is absolutely no proof whatsoever I had anything to do with it," concluded Mr. Huntoon.

On a funnier note, Mr. Huntoon said one resident in particular kept trying to throw his weight around while Mr. Huntoon was on the board. This resident was an assistant district attorney in Harris County - and is now a fine criminal defense attorney. I think he called you out, Murray.

Here is the text of an e-mail I received from Mr. Huntoon on Saturday morning. To be fair I am running it unedited.

It was good to talk to you the other day. I was very busy the next day, I was hoping to talk with you again. I can’t help but smile at the irony that you radiate. When I look at your website it appears that you make your living, helping guilty people game the system to get out of trouble. I am sure a few people are wrongly accused, or are they. It is hard to believe that all the clients that come to you with a DWI really are innocent. But you know that, and you make money trying to convince the court otherwise. That would be really hard for me to do and have a clean conscious. What do you do when one of those drunks, gets off from a DWI by your help, and then a month later goes out and gets drunk and drives home and runs over someone’s sweet 5 year old daughter?

The only reason I bring all of this up, is that it seems you are extremely fast to convict me, yet you refuse to convict your clients that you know are guilty. I guess my only fault is that I am not paying you. I suppose if I pay you to “represent” me maybe you would have a better opinion of me. Like your website says, “when bad things happen to good people”.

I don’t have any problem with you. I know you are a good dad. The fact you go to your girls softball practice and games, says a lot. But as Dad’s of girls, we really do need to set the tone and set the example for them. If we want them to grow up and live in a loving world, then we better do something to make it that way.

I don’t know what possessed me to sit down and start typing, but something intrigued me about you on the phone the other day. When I told you repeatedly that what you wrote about me was blatantly false and a lie, and when you admitted that you supported my opponent, and I asked you to do what was right and remove the lie. you were silent for a second, I think you were actually thinking about what was right and wrong for a split second. I asked you not to let the thirst for me to lose to Jeff, blur your vision to what is right and what is wrong. I actually think for a second you heard what I was saying.

I know it is hard in your profession. Right and wrong can get confusing. Prosecutor or Criminal Defense? Which one is the noble one? Which one is good versus evil? What do you do when you know in your heart that the client is guilty and you argue otherwise?

Well that’s about all I have. My daughters are waking up and we are going to the park.

In response I asked Mr. Huntoon what he thought the biggest issues facing the court were and what he would do to fix them. I have yet to receive a response.

I just hope he's not planning on doing anything to make the docket move more efficiently. Back in January I reset a case and just got my new trial date - April 12, 2011.

By George, you might just be on to something

Even though George Huntoon, republican candidate for Harris County Justice of the Peace, Precinct 5, Position 2, is proud to tell you that he's not an attorney, he is a bit familiar with Judge Yeoman's court.

It seems that Mr. Huntoon has five active cases on Judge Yeoman's docket.

He was issued a speeding ticket on January 26, 2009 that is now set for trial on March 22, 2011 in Case Number TR52X3735364.

He was issued another speeding ticket on June 16, 2009 and he failed to appear at his initial court appearance in Case Number TR52X3772434; a case set to go to trial on September 7, 2010.

On December 11, 2009 he was cited for improperly passing an emergency vehicle, disregarding a traffic control device and failure to maintain a single lane. He also failed to appear at his initial court appearance. Case Numbers TR52X3817550, TR52X3817551 and TR52X3817552 are set for trial on March 15, 2011.

As nothing goes fast in that courthouse over on Clay Road, maybe that's the winning strategy for getting out of traffic tickets in western Harris County -- set if for trial in Judge Yeoman's court then get a reset and throw your hat in the ring for the seat when the judge retires.

Is JP candidate up to his waist in water?

It seems that while George Huntoon, candidate for Justice of the Peace for Precinct 5, Position 2, was president of his homeowners' association, he engaged in a little plumbing work that didn't exactly have the approval of the City of Houston.

In fact, you could even say he stole water from the city when he bypassed the city water meter by cutting the PVC supply pipe and reattaching it on the other side of the water meter. His plumbing job only came to light when the city checked the electric meter for the pump -- and it showed electricity usage even though the water meter did not show any water usage.

Click here to listen to Mr. Huntoon talk about getting water for free.

Is this the person you want sitting on the bench?

The butcher, the baker and the idiot who fell off the turnip truck

I attended the Harris County Municipal Justice Bar Association's lunch today so I could see the candidates for Harris County Justice of the Peace for Precinct 5, Place 2. For those of you unfamiliar with that court, the current Justice of the Peace, William Yeoman, is retiring and four republicans are running for his bench.

Of the four candidates, Jeff Williams, George Huntoon and Virginia Pittman spoke at the luncheon. Mr. Williams is an attorney, Ms. Pittman is the supervisor of the court's criminal department and Mr. Huntoon is a real estate huckster, er agent.

Judge Yeoman's court is the busiest in the State of Texas, or at least that's what Judge Yeoman announces to the gathered throng when he steps out to present his monologue, er welcome speech, every morning.

Mr. Williams said he has practiced in Judge Yeoman's court and knows what a nightmare it can be. He promised to streamline procedures so that attorneys weren't spending hours in court. Of course on the traffic side of things, the nightmarish docket can be a blessing as DPS officers will rarely appear for trial and cases are continued for a year or more.

Ms. Pittman understands the inner workings of the court. She knows what works now and what doesn't. She proposed to get input from court staff as to what needs to be changed. While some might say that a court insider could be very myopic when it comes to operations, when it comes to the strange world of the justice court, that's not necessarily a bad thing.

Finally we come to the strange world of Mr. Huntoon. He was quite proud to let us know he wasn't an attorney -- but he always wanted to be one. His radio ads tout him as someone who would run the court as a conservative republican. When questioned about that statement he seemed at quite a loss for what a JP court actually does.

If you're concerned that a Harris County Justice of the Peace might conduct a marriage ceremony between two gays or lesbians, then Mr. Huntoon is the man for you. He said he would never do that. If you're worried that a Harris County Justice of the Peace might sit over a trial in which a defendant was charged with a hate crime (WTF?), he let us know that he wouldn't stand for it -- he didn't think federal hate crime legislation was constitutional. Finally, if you lie awake at night fretting that a Harris County Justice of the Peace would be one of those liberal activist judges who make up the law on the bench, you needn't worry anymore.

Mr. Huntoon said that as a judge he represented everyone in the district. Huh? Is that what he really said? Earth to McFly, a judge represents no one. A judge is supposed to be a neutral arbiter of the facts before him.

So for those of y'all voting in the republican primary next month, you've got a choice. You can choose the attorney, the court employee or the buffoon who has no freakin' idea what a Justice of the Peace does.