Warrants & Capias Pro Fines

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

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 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. - 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

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

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)

The justice or judge may require the defendant to give a PERSONAL BOND to secure the defendant’s appearance NEW BOND REQUIREMENT!!! 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)

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 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. - Article 23.01

CAPIAS PRO FINE 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. - 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

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

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

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 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

Juveniles and CPFs 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

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

Warrants & Capias Pro Fines