10/17/2016
A Day in the Life of a Justice of the Peace Prepared and Presented by: Suzan Thompson Justice of the Peace Matagorda County We Designate a Court Clerk
• Each justice of the peace may designate one or more persons to serve as clerk of the justice court.
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We Keep Records • The justice of the peace is the local registrar of births and deaths in the judge’s precinct. • However, the duty of registering births and deaths may be transferred to the county clerk if the justice of the peace and the county clerk agree in writing and the agreement is ratified by the commissioners’ court. • In addition to being the registrar, a justice of the peace is also responsible for keeping civil and criminal dockets, fee books, and other records, as well as collecting money. A justice of the peace may also have to respond to judicial records requests.
We give $ to the Treasurer • justice of the peace, who collects recognizance, bail bonds, fines,
• forfeitures, judgments, jury fees, and other obligations recovered in the name of
• the State of Texas, shall immediately pay the money to the county treasurer of
• the county for which the money was collected. [Art. 103.004(a), V.A.C.C.P.]
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We hold people in Contempt
• Like other judges, justices of the peace have the power to hold people in contempt of court, either for actions done to disrupt the court system, or for refusing to commit acts that the court has ordered. • While a justice of the peace may not confine a person to jail as punishment for a Class C misdemeanor, a justice of the peace may order confinement as punishment for contempt.
Some of us do WEDDINGS
• (and some of us do not) • A retired justice of the peace may perform weddings, if the justice:
• is vested in Judicial Retirement System of Texas Plan One or Plan Two; or
has an aggregate of at least 12 years of service as a justice or judge.
• [§2.202(a)(4) and (b), V.A.F.C.]
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We try cases
JURISDICTION AND VENUE
• Justice of the peace courts have original jurisdiction in criminal matters of
• misdemeanor cases punishable by fine only or punishable by a fine and, • as authorized by statute, a sanction not consisting of confinement or imprisonment, • and Class C misdemeanors. [Art. 5, § 19, Texas Constitution; Art. 4.11, V.A.C.C.P.] • This means justice courts may not try offenses punishable by imprisonment in jail. • However, the fact that, as a consequence of conviction in justice court, an agency or entity other than the court may impose a penalty or sanction, such as denial, suspension or revocation of a privilege, does not affect the original jurisdiction of the justice court. [Art. 4.11, V.A.C.C.P.]
We have actual trials
• Misdemeanors Punishable by Fine or Non‐Jailable Sanction
Misdemeanor cases, including:
• Class C misdemeanors;
• offenses punishable by fine only;
• offenses punishable by fine and, as authorized by statute, • a sanction not consisting of confinement or imprisonment;
• criminal offenses arising from Chapter 106, Alcoholic Beverage Code that do not
• include confinement as a sanction. [Art. 4.11, V.A.C.C.P.]
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There is no dollar amount limitation on the amount of a fine that can be levied by a justice court unless the statute being applied contains a fine range. In striking down a statutory limitation on the constitutional grant to justice courts for jurisdiction over all offenses punishable by fine only, the Attorney General concluded that "the [then] $500 limitation in article 4.11 of the Code of Criminal Procedure is unconstitutional because it would deprive the justice courts of some of their jurisdiction. This conclusion is based on the principle that the legislature can add to, but it cannot take away from, the jurisdiction granted to the ... Inferior courts in the constitution." [Op. Tex. Att’y Gen. No. DM‐277 (1993) quoting
Reasonover v. Reasonover, 58 S.W. 2d 817, 819 (Tex. 1933).
Limitations
• A complaint or information for any Class C misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward.
• [V.A.C.C.P. art. 12.02(b).]
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We Magistrate Defendants
• It is the duty of every magistrate to:
• preserve the peace within his jurisdiction by the use of all lawful means;
• issue all process intended to aid in preventing and suppressing crime;
• cause the arrest of offenders by the use of lawful means in order that they may be brought to punishment. V.A.C.C.P. 2.10.]
We get to see them first! • A magistrate performs important and critical duties in the criminal justice system. • The magistrate often is the first judicial officer involved in the arrest and detention of a person accused of crime. A justice of the peace is a magistrate.
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• “Magistration" is not a technical term that is defined in law, it is a vernacular term that has gained wide spread use in courts of limited jurisdiction. • Magistration is simply a reference to an "initial appearance" following arrest or, in some instances, a "probable cause hearing." Magistration is not an arraignment. • The magistration of juveniles is a similar procedure.
We do a lot before it ever gets done! •
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In the role of magistrate, the justice of the peace is expected to: accept criminal complaints; order arrests; issue search warrants; find probable cause; warn persons accused of crimes; admit persons to bail; commit persons to jail; appoint legal counsel if so designated; issue emergency protective orders and peace bonds; and, infrequently, conduct examining trials. The magistrate acts as a neutral and detached participant when engaged in the duties of the office. This neutrality is essential to ensuring fairness in the criminal justice system.
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We read them their rights Art. 15.17 • the magistrate shall inform the person arrested of the procedures for requesting
Appointment of counsel.
• The magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the person at the same time.
And we try to get the point across
If the person does not speak and understand the English language or is deaf, the
magistrate shall inform the person in a manner consistent with Articles 38.30 and
38.31, V.A.C.C.P., as appropriate.
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• If the person arrested is indigent and requests appointment of counsel and if the magistrate is authorized under Article 26.04, V.A.C.C.P., to appoint counsel for indigent defendants in the county, the magistrate shall appoint counsel in accordancewith Article 1.051.
• If the magistrate is not authorized to appoint counsel, the magistrate shall without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel; transmit; or cause to be transmitted to the court or to the courts’ designee authorized under Article 26.04 to appoint counsel in the county.
We accept pleas and assess punishment • A defendant taken before a magistrate in accordance with Article 15.18, V.A.C.C.P., may waive trial by jury and enter a plea of guilty or nolo contendere.
• [Article 4.12, V.A.C.C.P.]
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Out of County Pleas
(we do other JP’s work in other counties) • [Arts 15.17(b) and 15.18(a), V.A.C.C.P.]
• take bail, if allowed by law, and immediately transmit the bond taken to the court having jurisdiction of the offense; or
• in the case of a person arrested under warrant for an offense punishable by fine only as the case may indicate:
• accept a written plea of guilty or nolo contendere;
• set a fine;
• determine costs;
• accept payment of the fine and costs;
• give credit for time served;
determine indigency; or
on satisfaction of the judgment, discharge the defendant
We set bail (sometimes even on your cases) • Bail is the security given by a defendant that the defendant will appear before the court and answer the accusation brought against the defendant. [Art. 17.01, V.A.C.C.P.] • The purpose of bail is to obtain the release of the defendant from custody and to secure the defendant’s presence in court at the time of the trial. • [Ex parte Milburn, 8 S.W. 3d 422, 424 (Tex. App. ‐
Amarillo 1999, no pet.).]
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And We can’t deny bail all the time
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A magistrate is not permitted to set "cash bond only." It is well‐established that the Legislature intended that a defendant be given the option or privilege under Article 17.02, Code of Criminal Procedure, of posting cash in lieu of having sureties sign the
bond. Article 17.02 does not grant to the court the authority to deny a defendant the right of posting a surety bond in a bailable case. [Exparte Deaton, 582 S.W. 2d 151, 153 (Tex. Crim. App. 1979); Ex parte Rodriquez, 583 S.W. 2d 792 (Tex. Crim. App. 1979); Op. Tx.Att’y Gen. Nos, GA‐0048 (2003), JM‐353 (1985), and see JC‐0024 (1999).] Articles 17.01,17.02, and 17.15, Code of Criminal Procedure, confer upon the court, judge, magistrate, or officer taking a bail bond broad discretion in setting the amount of bail, not to require a cash bond or surety bond to the exclusion of the other. Therefore, it follows that the court does not have the discretion to set a differential bail bond amount depending upon whether a cash bond or a surety bond is used. [Professional Bondsmen of Texas v. Carey, 762 S.W. 2d 691,693 (Tex. App. ‐ Amarillo 1988).]
Setting Bail Amount
(we decide) • There are no fixed rules for setting the amount of bail [Ex parte Milburn, 8 S.W. 3d 422, 424 (Tex. App. ‐ Amarillo 1999, no pet.)
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CONDITIONS OF BOND
(SOME ARE MANDATORY) •
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The order should contain any conditions of bond, thereby putting surety on notice that the conditions must be satisfied.
To secure a defendant’s attendance at trial, a magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community. [V.A.C.C.P. art 17.40(a)
At a hearing limited to determining whether the defendant violated any condition of bond imposed, the magistrate may revoke the defendant’s bond only if the magistrate finds by a preponderance of the evidence that the violation occurred.
If the magistrate finds that the violation occurred, the magistrate shall revoke the defendant’s bond and order that the defendant be immediately returned to custody.
Once the defendant is placed in custody, the revocation of the defendant’s bond discharges the sureties on the bond, if any, from any future liability on the bond,
A discharge under this subsection from any future liability does not discharge any surety from liability for previous forfeitures on the bond. [Id. at (b).]
A defendant charged with a certain offense against a child is subject to conditions of bond and possible denial of bail. [Art. 17.41(a), V.A.C.C.P.]
We have concurrent powers as magistrates • All the magistrates of a given county have co‐equal jurisdiction; therefore, a justice of the peace acting as a magistrate has jurisdiction concurrent with that of a district judge who also seeks to exercise magisterial powers. • The code provides that "[w]hen two or more courts have concurrent jurisdiction of any criminal offense, the court in which an indictment or a complaint shall first be filed shall retain jurisdiction except as provided in article 4.12." • This means that a district judge cannot change the bond set by a justice of the peace unless the district court has acquired jurisdiction of the case. • [Art. 4.16, V.A.C.C.P.; Guerra v. Garza; 987 S. W. 2d 593, 594 (Tex Crim. App. 1999)(citing, Ex parte Clear, 573 S.W. 2d 224, 228 (Tex Crim. App. 1978). See Op. Tex. Att’y Gen. No. MW‐581 (1982).]
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Release on Bond of Certain Persons Arrested Without a Warrant
A person who is arrested without a warrant andwho is detained in jail must be released on bond in an amount not to exceed $5,000, not later than the 24th hour after the person’s arrest, if:
• The person was arrested for a misdemeanor; and
• A magistrate has not determined whether probable cause exists to believe that the person committed the offense. [Art. 17.033(a), V.A.C.C.P.]
• If the person is unable to obtain a surety for the bond orunable to deposit money in the amount of the bond, the person must be released on personal bond.
• [Art. 17.033(b) V.A.C.C.P.]
We have a timeline to get to the jail to magistrate • a person who is arrested without a warrant and who is detained in jail must be released on bond in an amount not to exceed $10,000, not later than the 48th hour after the person’s arrest, if:
• the person was arrested for a felony; and
• a magistrate has not determined whether probable cause exists to believe that the person committed the offense. [Art. 17.033(b), V.A.C.C.P.] • On the filing of an application by the attorney representing the state, a magistrate may postpone the release of a person under #1 or #2 for not more than 72 hours after the person’s arrest. • An application must state the reason a magistrate has not determined whether probable cause exists to believe that the person committed the offense for which the person was arrested. [Art. 17.033(c), V.A.C.C.P.]
• The time limits above do not apply to a person arrested without a warrant who is taken to a hospital, clinic, or other medical facility before being taken before a magistrate. [Art. 17.033(d), V.A.C.C.P.]
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• the time limits imposed begin to run at the time, as documented in the records of the hospital, clinic, or other medical facility, that a physician or other medical professional releases the person from the hospital, clinic, or other medical facility. • [Art. 17.033(d), V.A.C.C.P.]
Bond Conditions
• A magistrate shall require on release that a defendant charged with a subsequent offense under DWI, FWI, or BWI, Penal Code offenses, or Penal Code offenses of • intoxication assault or intoxication manslaughter:
• have installed on the motor vehicle owned by the defendant or on the vehicle most regularly driven by the defendant, a device that uses an ignition interlock to make impracticable the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator; and
• not operate any motor vehicle unless the vehicle is equipped with that
• device.
• The magistrate shall require the installation of the device on a subsequent offense under §§ 49.04‐.06, Penal Code, or an offense under § 49.07 or 49.08, Penal Code. [Art 17.441(a), V.A.C.C.P.; see Ex Parte Elliott 950 S.W. 2d 714, 715 (Tex. App.‐ Ft. Worth (2nd dist.) 1997, pet. Ref’d).]
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• Bond Forfeitures • Arrest of Defendants for Violation of Bond Conditions – as long as JP still has jurisdiction of the bond • Indigency Hearings
We determine if someone has MENTAL ILLNESS OR MENTAL RETARDATION
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Early identification of a defendant’s mental illness or mental retardation allows the
court to consider all of the legal options available. Mental illness or mental retardation
may affect a defendant’s competency to stand trial, provide a defense for the offense
committed, or make some defendants eligible for alternatives to incarceration. Even if the
defendant is competent to stand trial and is subsequently incarcerated, the defendant may
still benefit from proper treatment. It is important that a magistrate be aware of the
meanings of the terms as well as the procedure to follow if the magistrate is notified that
there is reasonable cause to believe that the defendant has a mental illness or mental
retardation.
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And if they do…
EMERGENCY MENTAL HEALTH COMMITMENTS
(and sometimes sign waivers for the county judges) •
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A justice of the peace, sitting as magistrate, may issue warrants for emergency apprehension and detention of mentally ill persons [§ 573.012, 573.021, V.A.H.S.C] and chemically‐dependant persons [§ 462.001, et. seq., V.A.H.S.C]. It is possible that a magistrate may be asked to grant a motion for order of protective custody filed in a court in which an application for court‐ordered mental health services is pending if the magistrate has been designated by the judge of the court in which the application is pending to issue such orders. [§ 574.021, V.A.H.S.C.] The county has original jurisdiction of all judicial proceedings for commitment of a person with mental retardation to residential care facilities. [§ 593.041(c), V.A.H.S.C.] Therefore, if a justice of the peace is asked to grant an order of commitment for a person with mental retardation, the judge should dismiss the matter as not within justice court jurisdiction. The probate court or court having probate jurisdiction shall be open for proceedings under Title 7, Subtitle C, Health & Safety Code, during normal business hours. The probate judge or magistrate shall be available at all times at the request of a person apprehended or detained under Chapter 573, or a proposed patient under Chapter 574. [§ 571.012, V.A.H.S.C
We try TO PREVENT OFFENSES
• Magistrates have two methods that can be used to prevent offenses before they occur. • Emergency protective orders (EPOs) and peace bonds can be issued when the proper grounds are shown to exist for their issuance. Emergency protective orders are used only in cases of family violence, dating violence, or stalking, while peace bonds may be used in any instance where a magistrate is informed under oath that an offense is about to be committed.
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And sometimes we have no choice
• Mandatory EPO’s
• Serious bodily injury
• Exhibition of weapon Modification of the Order
and then we have a hearing on the matter because they don’t want the EPO
• After notice to each affected party and a hearing, the issuing court may modify all or part of an order issued under Article 17.292, V.A.C.C.P., if the court finds that:
the order as originally issued is unworkable;
• the modification will not place the victim of the offense at greater risk than did the original order; and
• the modification will not in any way endanger a person protected under the order.
• [Art. 17.292(j), V.A.C.C.P.]
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Peace Bond
(Only in Texas can someone be arrested because they are “fixing” to do something.) • Whenever a magistrate is informed under oath that an offense is about to be committed, the magistrate may use a peace bond to prevent the offense. • The magistrate shall immediately issue a warrant for the arrest of the accused. [Art. 7.01, V.A.C.C.P.]
• The types of alleged offenses to which peace bond proceedings apply are those against a person or property or the threat to commit an offense against a person or property. [Ex parte Muckenfuss, 107 S.W. 1131 (Tex. Crim. App. 1908).]
• The justice of the peace may not try a suit to forfeit a peace bond; • the district court has exclusive jurisdiction to try a suit to forfeit a peace bond, regardless of the amount of the bond. [Tex. Const. Art. V, §
8; § 27.031(b)(1), V.A.G.C.; State v. San Miguel, 23 S.W. 389 (Tex. Civ. App. 1893).]
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We DISPOSE OF CRUELLY‐TREATED ANIMALS
• An application may be made by a peace officer or an animal control officer for a warrant to seize an animal that the officer has reason to believe is or has been cruelly treated. • After the animal is seized, a hearing wil determine if the animal should be returned to its owner, sold at auction, or disposed of in some other manner.
§ 821.022(a), V.A.H.S.C]
We get requests for examining trials
• The Code of Criminal Procedure vests magistrates with exclusive, original jurisdiction to conduct and preside at examining trials. [Art. 16.01, V.A.C.C.P.] An examining trial in Texas serves as an adversarial proceeding designed to inquire into the probable cause of the State to justify detention of an accused pending formal prosecution, and state law permits the examining magistrate to appoint counsel for the indigent accused.
• [Arts. 1.051(c), 16.01, 16.06, 16.17, V.A.C.C.P.] An examining trial affords an accused the opportunity to discover the State’s case. Only in a felony case does the defendant have the right to an examining trial prior to indictment to determine the amount or sufficiency of bail. • However, this right goes away if an indictment is issued before the examining trial can be held. [Art. 16.01, V.A.C.C.P.]
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But not if there has been an indictment
• An examining trial may also be held upon the filing of an affidavit or sworn motion alleging that:
• the amount of bail is insufficient;
• the sureties are not good for the amount; or
• the bail bond for any reason is defective or insufficient. [Art. 16.16, V.A.C.C.P.]
• If an affidavit for examining trial is filed with one of the appropriate courts listed in Art. 16.16, the judge of the court shall issue a warrant of arrest, and require of the defendant sufficient bond and security, according to the nature of the case. [Art.16.16, V.A.C.C.P.]
We Issue Subpoenas because sometimes people just don’t want to come and see us. • The magistrate may issue a subpoena, or an attachment without having first issued a subpoena, for any witness where the witness resides, even to any county in thestate. [Arts. 16.10 and 16.11, V.A.C.C.P.]
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TAKING COMPLAINT AND DOCKETING CASE
• A complaint is a sworn affidavit charging the commission of an offense [Arts. 45.01(a),
• 45.018(a), V.A.C.C.P.] and is the sole charging instrument in justice court. [Art. 27.14(d); Nam Hoai Le v. State, 963 S.W. 2d 838 (Tex. App. ‐
Corpus Christi, 1998, pet. ref’d).] If a complaint is filed alleging an offense that is within the jurisdiction of the justice of the peace court, then the judge must keep, or must order the clerk of the court to keep, a docket of the case. [Art. 45.017, V.A.C.C.P.]
We issue SEARCH AND ARREST WARRANTS
• Magistrates, including justices of the peace, have the authority to issue several types of warrants. • Search and arrest warrants authorize a peace officer to search a place for an item, or to arrest a person and bring the person before the court. • Some combination warrants allow the peace officer to do both. Administrative search warrants authorize certain public officials to inspect property for safety hazards. A capias is a misdemeanor arrest warrant.
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Some of us issue Evidentiary Search Warrants (but only in the middle of the night) • In a county that does not have a judge of a municipal court of record who is a
• licensed attorney, • a county court judge who is an attorney, or • a statutory county court judge, • any magistrate may issue a search warrant under Subdivision (10) or Subdivision (12), Art. 18.02, V.A.C.C.P. This is not applicable to a subsequent search warrant under Subdivision (10), Art. 18.02 [Art. 18.01 (i), V.A.C.C.P.]
Search Warrants to Photograph a Child
• A search warrant to photograph a child shall be executed by an officer of the same
• gender as the alleged victim or the officer must be assisted by a person of the
• same gender acting under the officer’s direction. [Art. 18.021(e), V.A.C.C.P.]
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Agriculture Warrants
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the Agriculture Department may seek an agriculture warrant with respect to a plant pest or plant disease identified in the application for the warrant to:
conduct an inspection of:
physical areas;
containers;
buildings; or
items that are reasonably likely to contain: a plant pest; a plant disease; or an
infected or potentially infected plant;
set a trap for certain plant pests;
examine records pertaining to the detection, treatment, purchase, or sale of plants;
Or
test, treat, identify, quarantine, take samples of, seize, or destroy infected or potentially infected plants. [§71.0083, V.A.Ag.C.]
An agriculture warrant may be issued only by a magistrate authorized to issue asearch warrant under Chapter 18, Code of Criminal Procedure, only after thedepartment has exercised reasonable efforts to obtain consent to conduct a search,and on application by the department accompanied by a supporting affidavit that establishes probable cause for the issuance of the warrant
ADMINISTRATIVE SEARCH WARRANTS
• Administrative search warrants are search warrants that are used to inspect buildings for potential dangers or violations of fire, health, or unsafe building statutes or ordinances.
• They can be issued only to certain public officials who would routinely make such investigations. [Art. 18.05, V.A.C.C.P.]
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And everybody wants one!
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The warrant is issued to one of the following county, subdivision officers only:
fire marshal;
city or other political
health officer; or
code enforcement officer.
• Purpose
• The search warrant is used for the inspection of any specified premises to
• determine the presence of a: [Id. at (a).]
• fire hazard;
health hazard;
• unsafe building condition; or
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• violation of any:
• fire;
health; or
• building regulation;
• statute; or
• ordinance. [Art. 18.05(a), V.A.C.C.P.]
We issue a lot of ARREST WARRANTs
• A warrant of arrest is a written order from a magistrate, directed to a peace officer or some other person specifically named, commanding the officer or person to take the body of the person accused of an offense, to be dealt with according to law. [Art. 15.01, V.A.C.C.P.] • A warrant extends to any part of the State, except for the warrant of a city or town mayor. [Art. 15.06, V.A.C.C.P.] • 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. [Art. 15.22, V.A.C.C.P.] • A magistrate may issue a summons instead of an arrest warrant. [Art. 15.03, V.A.C.C.P.]
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Fugitive from Justice – Extradition
(i.e. – County Judge’s usually but we still have jurisdiction) • Certain requirements govern arrest warrants for individuals who have fled another state, who are found in Texas, and are sought by the state they fled. The Uniform Criminal Extradition Act, a nationwide procedure governing the extradition of criminals, has been adopted in Texas. [Art. 51.13, § 2, V.A.C.C.P.]
• The judge or magistrate shall issue a warrant directed to any peace officer
• commanding the officer to apprehend the person named therein; wherever the person may be found in Texas; and bring the person before the same or any other judge or magistrate when:
• a sworn complaint is made before any judge or magistrate that any person in this State is a fugitive from justice from another state who committed a crime in any other state and was convicted of a crime in the other state; and escaped from confinement; or violated the terms of the person’s bail, probation or parole.
• [Art. 51.13, § 13, V.A.C.C.P.]
FYI – (I have never done paragraph 3) • After a complaint has been reduced to writing, and signed and sworn to by the complainant the justice of the peace should file it, and show on the complaint the date of filing. [Brogdon v. State, 140 S.W. 352, 353 (Tex. Crim. App. 1911); Starbeck v. State, 109 S.W. 162 (Tex. Crim. App. 1980).] • The court may issue a warrant for arrest of the accused and deliver the warrant to the proper officer to be served. [Art. 45.014, V.A.C.C.P.] • Whenever a criminal offense that a justice of the peace has jurisdiction to try is committed within the judge’s view, the judge may issue a warrant for the arrest of the offender without a complaint. [Art. 45.103, V.A.C.C.P.]
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CAPIAS AND CAPIAS PRO FINE
• A capias is a writ issued by a judge of the court having jurisdiction of a case after
• commitment or bail and before trial, or by a clerk at the direction of the judge, and directed
• "to any peace officer of the State of Texas," commanding the officer to arrest a person
• accused of an offense and bring the person before that court immediately, or on a day or
• at a term stated in the writ. [Art. 23.01, V.A.C.C.P.] A capias is similar to an arrest warrant or summons. [Art. 23.04, V.A.C.C.P.]
We determine Probable Cause (every single day and at night also) •
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The affidavit for complaint must state that the affiant, in addition to having a good reason to believe, does believe that the alleged offense has been committed. [Arts. 15.03 and 45.019(a)(4), V.A.C.C.P.] The complaint must provide on its face a sufficient basis upon which a justice of the peace can find that there is probable cause for the issuance of the warrant of arrest.
An arrest warrant shall be issued only upon a written and sworn complaint setting forth essential facts constituting the offense charged and showing there is probable cause to believe that such an offense has been committed and that the defendant committed it.
[Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 564 (1971); Giordenllo v. U.S., 357 U.S. 480, 485 (1958); Barnes v. Texas, 380 U.S. 253, on remand, Barnes v. State, 390 S.W. 2d 266, 270 (Tex. Crim. App. 1965).] The substance of probable cause is a reasonable, "prudent man" grounds for belief of guilt. [U.S.v. Jacquillon, 469 F. 2d 380 (5th Cir. 1972) cert. den., 410 U.S. 938 (1973); U.S.v. Wysocki, 457 F. 2d 1155, 1158 (5th Cir. 1971), cert. den., 409 U.S. 859.] Probable cause is based on the "probability" and not the "certainty" that the accused committed the offense. [U.S.v. Bowers, 458 F. 2d 1045, 1048 (5th Cir. 1972), cert. den., 409 U.S. 868; U.S.v. Atkinson, 450 F. 2d 835, 838 (5th Cir. 1971), cert. den., 406 U.S. 923 (1972
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INQUESTS
(Yes, we see dead people!) • An inquest to determine cause of death may occur either as a formal hearing, or as an informal investigation, as the justice of the peace sees fit. • The primary purpose of an inquest is to determine the cause of death. • Justices of the peace do not have the authority to "pronounce a person dead," although the duty of determining cause of death is sometimes mistakenly referred to in that way. • The justice’s duty in an inquest is to determine a cause of death, sign the death certificate and make necessary orders related to the inquest, and, if necessary, to issue a warrant of arrest for a person suspected of causing the death.
We see dead people
• An inquest is an investigation to determine the cause of death of a person and take preliminary action to secure a trial if it appears that an individual is responsible for the death of the deceased. [art. 49.01 (2), V.A.C.C.P.] Only a justice of the peace, or a county judge, if the justice of the peace is unavailable, in the county where the death occurred has the power and duty to conduct an inquest if that county does not have a medical examiner. [Art. 49.07(c), V.A.C.C.P.]
• There is a specific type of inquest: a fire inquest. This is an investigation to determine if a building has been unlawfully burned. Although some of the rules governing inquests on dead bodies apply to fire inquests, there are differences. The statutory definition of "inquest" is an investigation into the cause and circumstances of the death of a person, and a determination, made with or without formal court hearing, as to whether the death was caused by an unlawful act or omission. [Art. 49.01(2), V.A.C.C.P.]
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We see dead people
• If no justice of the peace serving the county is available to conduct the inquest, • A person required to give notice shall notify the county judge, who shall initiate the inquest. • No later than the fifth day after the inquest is initiated, the county judge shall transfer all information obtained to the proper justice of the peace. [Art. 49.07(c)(2), V.A.C.C.P.]
ADMINISTRATIVE HEARINGS
(in our spare time) • A justice of the peace is authorized, in limited cases, to preside over administrative hearings. • Justices of the peace conduct the initial hearing on driver’s license suspensions and revocations by the Department of Public Safety in unsafe driver and commercial motorist cases; and hear appeals on handgun licenses, and dangerous wild animal certifications. • The justice courts also have jurisdiction of towing hearings, which are civil administrative hearings. • Administrative hearings in justice court are quasi‐judicial in nature, but are not judicial functions of the court. • This means there are no specific rules of procedure other than those found in the codes. [Op. Tex. Att’y Gen. No. M‐653 (1970).
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We hear CONCEALED HANDGUN LICENSE hearings (this is when DPS says no and so they are mad and request a hearing with a JP) •
•
•
•
•
•
•
Private citizens may apply for a license to carry a concealed handgun in Texas.
The Department of Public Safety (the "Department") is the state agency responsible for processing license applications. [§ 411.174, V.A.G.C.] This processing includes: Release of application materials to eligible persons; state, local, and national criminal history checks; and recommendation for approval or denial. An application shall be reviewed by the director’s designee in the geographical area of applicant residence. [§411.176 (a), V.A.G.C.]
The Department has 180 days after date of receipt of application materials to complete the record check and investigation and to make a recommendation to approve or deny the application for license. [§ 411.176(b), V.A.G.C.] The applicant shall be given written notice of any application denial. [§411.177 (b)(2), V.A.G.C.] The person notified of a denial, suspension, or revocation may request, in writing, a hearing on the denial, suspension or revocation. The written request triggers procedures for setting and holding the hearing in a justice of the peace court. [§
411.180(b), V.A.G.C.
DANGEROUS WILD ANIMALS
(and then we deal with owners of wild animals) •
•
•
•
Private ownership of dangerous wild animals is subject to regulation by local governments. A person is required to obtain a certification of registration for dangerous wild animals in any municipality or county where a person seeks to keep such an animal or animals. Each county commissioners court and municipality is required to adopt no later than December 1,2001, an ordinance or order as necessary to implement administering a certificate of registration program created by Subchapter E, Chapter 822, Health and Safety Code, and any resident of a county may bring an action in mandamus in district court to compel the commissioners court to adopt such a program. [Op. Tex. Att’y Gen. No. JC‐0552 (2002).]
A person who wishes to keep any of the specified animals in private ownership must apply for and receive a certificate of registration for the animal from the local animal registration agency. [§ 822.103, V.A.H.S.C.] If the animal registration agency denies or revokes a certification, the person may appeal this denial or revocation to the justice court for the precinct in which the animal is located or the municipal court in the municipality in which the animal is located. The decision of the justice or municipal court also may be appealed to the county court or county court of law. A decision by the county court or county court at law may not be appealed. [§ 822.105(c), V.A.H.S.C
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We hear EXPUNCTIONS
In certain cases, the record of a person’s trial or an arrest may be erased from the record. Expunction offers a clean slate to those who are entitled to it.
The general expunction procedure set out in the statutes and codes is found in Chapter 55, Code of Criminal Procedure, and only the district court can use Chapter 55. [Art. 55.01, V.A.C.C.P.] In order to be entitled to an expunction or to have a right to an expunction under Chapter 55, a person must be tried and acquitted; or tried, convicted, and subsequently pardoned, with a few exceptions. However, Chapter 55 does not apply in cases of alcohol offenses, tobacco offenses, or Education Code FTA, involving juveniles
or minors. There are specific procedures for each. An expunction is treated like a civil case.
So we can memory on our computers
A justice court may expunge certain offenses involving juveniles and minors. This include: expunction of "failure to attend school" under the Education Code; violations of the Alcoholic Beverage Code; and various tobacco offenses under the Health and Safety
Code.
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10/17/2016
We Issue Subpoenas
A subpoena is a writ issued to a peace officer or other proper person commanding that officer or person to summon one or more named individuals to appear at a certain term of
the court or on a certain day, to testify in a criminal case or before an examining court, corner’s inquest, or any other proceeding in which the testimony of a witness may be
required in accordance with the Code of Criminal Procedure. The subpoena shall be dated and signed officially by the court or clerk issuing it, but does not have to be under seal. [Art. 24.01 (a), V.A.C.C.P.; and see Art. 45.012(g) V.A.C.C.P., and § 27.059(b), V.A.G.C.]
Subpoena Duces Tecum for Documents and Things
(aka come over here and bring all your stuff) • If a witness is in possession of any instrument of writing or other thing desired as evidence, the subpoena duces tecum [Art. 24.02, V.A.C.C.P.] may:
• specify such evidence; and
• direct that the witness bring it and produce it in court. [Id.]
• A subpoena duces tecum may not be used as a "fishing expedition", but should give reasonably accurate description of the papers wanted either by date, title, substance, or subject. [Exparte Gould, 132 S.W. 364, 369 (Tex. Crim. App. 1910.]
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We Attach Witnesses
(when they won’t come on their own)
• An "attachment" is a writ issued by a clerk of a court under seal, or by any magistrate in any criminal case, commanding some peace officer to take the body of a witness and bring the witness before the court or magistrate on a day named, or forthwith, to testify for either the State or the defendant. [Art. 24.11, V.A.C.C.P.
We appoint Court Interpreters
• A court shall appoint a certified court interpreter or a licensed court interpreter if a motion for the appointment of an interpreter is filed by a party or requested by a witness in a civil or criminal proceeding in the court. [§
57.002, V.A.G.C.]
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Or we use what we have while we have it
A person may not interpret for a hearing‐impaired individual at a court proceeding or advertise or represent that the person is a certified court interpreter unless the person holds an appropriate certificate under subchapter B, Chapter 57, V.A.G.C. [57.026, V.A.G.C.]
"Qualified interpreter" means an interpreter for the deaf who holds a current legal certificate, issued by the National Registry of Interpreters for the Deaf or a current court
interpreter certificate issued by the Board for Evaluation of Interpreters at the Department of
Assistive or Rehabilitative Service. [Art. 38.31(g)(2), V.A.C.C.P.]
We sometimes give a DEFERRED DISPOSITION
• A justice of the peace is not authorized to "probate" a sentence on a criminal case within the justice court’s jurisdiction. Instead, the justice of the peace may defer final disposition of a case and grant a period for probation‐like conditions to be met by the defendant. [Art.
• 45.051, V.A.C.C.P.] • This is called deferred disposition. Certain things must occur before deferred disposition is granted.
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We ENFORCE JUDGMENTS
When a judgment and sentence have been entered against a defendant, the defendant may fulfill the judgment either by paying the fine, by forfeiting a cash bond, by receiving credit for time that the defendant remained in jail, or by discharging the fine through
community service. If the defendant is found to be indigent, the court may require the
defendant to perform community service to discharge the fine. [Art. 45.049(a), V.A.C.C.P.]
While the judge may order a non‐indigent defendant confined in jail for refusing to pay the fine, the judge may not confine an indigent defendant in jail for inability to pay the fine.
[Art. 45.046, 45.048, V.A.C.C.P.]
We Forfeit Cash Bonds
• If a defendant posts a cash bond, enters a written and signed plea of nolo contendere and a waiver of jury trial, and fails to appear according to the terms of the bond, • the judge may enter a judgment of conviction and forfeit the cash bond in satisfaction of the fine and court costs. [Art. 45.044(a), V.A.C.C.P.]
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Capias Pro Fine After Judgment
• The court may order a capias pro fine issued for the defendant’s arrest if: • the defendant is not in custody when the judgment is rendered; or
• the defendant fails to satisfy the judgment according to its terms. V.A.C.C.P.]
We are Liable! 112.052 – Local
Government Code
• A justice of the peace is liable for an uncollected judgment in a criminal case.
• [Att’y Gen. Op. DM‐396 (1996).] • The issuance of a capias pro fine is a part of the due diligence required of justices of the peace in collecting judgments. [Att’y Gen. Op. Nos. JM‐517 (1986); MW‐37 (1979).]
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112.007 - LGC
• County Auditor SHALL keep a general
set of records to show all …
indebtedness of the county…
• If a criminal judgment is rendered
and not collected, it becomes a debt
to the county.
We have to tell everybody what we are doing! • 114.044 – Any county official who
collects or handles any money for the
use of the county SHALL make a full
report at each regular term to
commissioner’s court on all fines
imposed and collected, all judgments
rendered and collected for the use of
the county and this report SHALL be
filed in the county clerk’s office.
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We DON’T dismiss cases • A justice of the peace cannot dismiss a
case without a motion from the
prosecutor except for specific statutes.
• This does not exclude a judge from
finding a defendant “not guilty” at the
conclusion of a trial IN WHICH THE
PROSECUTOR is present.
• No justice of the peace may proceed to
trial without a prosecutor under any
circumstances.
We have Indigency Hearings because nobody ever has any money
• If a convicted defendant tells the court “I am too poor (or not able) to pay", • the court should immediately conduct an indigency hearing.
• A justice court may waive payment of the fine or costs imposed on a defendant who defaults in payment if the court determines that:
• the defendant is indigent; and
• each alternative method of discharging the fine or costs under Article 45.049, V.A.C.C.P., community service, would impose an undue hardship on the defendant.
• [Art. 45.0491, V.A.C.C.P.]
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We Issue Commitments to the Sheriff after they don’t pay a judgment When a judgment and sentence have been entered against a defendant and the defendant defaults in the discharge of the judgment, the judge may order the defendant confined in jail until discharged by law if the judge at a hearing determines that:
the defendant intentionally failed to make a good faith effort to discharge the
judgment; or
the defendant is not indigent; and
has failed to make a good faith effort to discharge the fines and costs under Art. 45.049, community service; and
could have discharged the fines and costs under Art. 45.049 without experiencing any undue hardship. [Art. 45.046(a), V.A.C.C.P.]
We give Credit for Jail Time
• A misdemeanant who defaults on the fines or costs ordered in connection with multiple class C misdemeanors and who is ordered to discharge the fines or costs by being confined, ordinarily serves the terms of confinement concurrently if the misdemeanant is already confined when he or she is so ordered. • The court, may in its discretion, order the terms to run consecutively under article 42.08 of the Code of Criminal Procedure. [Art. 42.08 and 43.03(b), V.A.C.C.P.] • And if the misdemeanant is not confined at the time of the order, he or she serves the terms consecutively. [Op. Tex. Att’y Gen. No. JC‐0393 (2001).]
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We Waive Payments of Fines and Costs(don’t panic – not all the time) • A municipal court, regardless of whether the court is a court of record, or a justice court may waive payment of a fine or costs imposed on a defendant who defaults in payment if the court determines that:
• the defendant is indigent; and
• discharging the fine and costs under Article 45.049 would impose an undue hardship on the defendant. [Art. 45.0491, V.A.C.C.P.]
Civil Collection of Fines
• If after a judgment and sentence is entered the defendant defaults in payment of a fine, the justice of the peace may order the fine and costs collected by execution against the defendant’s property in the same manner as a judgment in a civil suit.
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Unless the contract provides otherwise, the court shall calculate the amount of any collection fee due to the governmental entity or to the private attorney or private vendor performing the collection services and shaft receive all fees, including the collection fee. The amount to which the 30 percent collection fee applies is: (1) the amount to be paid that is communicated to the accused as acceptable to the court under its standard policy
for resolution of the case, if the accused voluntarily agrees to pay that amount; or
(2) the amount ordered paid by the court after plea or trial. [Id.]
• A defendant is not liable for the collection fees if the court of original jurisdiction has determined the defendant is indigent, or has insufficient resources or income, or is otherwise unable to pay all or part of the underlying fine or costs. [Art. 103.0031(d), V.A.C.C.P.]
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10/17/2016
We Love Juveniles
Fail to attend school cases – these are gone
Parent contributing to non attendance * age 12‐17 – we still do these Cannot file on an 18 year old, however, can file on the parent (legislature forgot to change that statute)
• 2 prior cases on juvenile for anything other than traffic, justice court looses jurisdiction and the case SHALL be transferred to juvenile court •
•
•
•
Truancy vs. Fail to Attend School
• Can still file “truancy” case with the justice court, however, because it is identified as a “CINS” case, SHALL appoint an attorney for the child. • Fail to attend school – is gone – only a civil case 42
10/17/2016
Juvies – gotta love ‘em
• If the child has previously been convicted of." • (A) two or more misdemeanors punishable by fine only other than traffic offense or public intoxication; • (B) two or more violations of a penal ordinance of a pofitical subdivision other than traffic offense; or • (C) one or more of each of the types of misdemeanors described in Paragraph (A) or (B), the court shall waive its original jurisdiction and shall refer the child to juvenile court. [§ 51.08(b)(1 ), V.A.F.C.]
• In certain circumstances under §51.08(b):
We do JUVENILE MAGISTRATION
• Juvenile magistration is similar to the magistration process for adults, and its purpose is the same. • Magistration of defendants of any age is intended to inform defendants of their rights, set bail, and if necessary, to appoint counsel. • Juvenile magistration adds to this process certain procedures designed to further safeguard the rights of the juvenile in light of their age, and to ensure their understanding of their rights
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JUVENILE DETENTION HEARING
• If the judge of the juvenile court or any alternate judge is not in the county or is otherwise unavailable, any magistrate is authorized, to conduct hearings to determine whether a child as defined by the Texas Family Code should be released from detention pending further proceedings against the child in juvenile court. [§ 51.04(f).] • The juvenile board of a county may appoint a referee to hold detention hearings who is a licensed attorney in this state. [§ 54.01(I), V.A.F.C.]
We DISPOSE OF STOLEN PROPERTY
The object of a seizure is to restore stolen property to the person having the superior
right of possession. [Art. 47.01a, V.A.C.C.P.] The court is authorized to award the
property, without conditions, to a petitioner upon proof of petitioner’s claim; however, if
the property is needed as evidence by the State in a criminal proceeding, the person
with the superior right of possession shall hold the property subject to the condition that
the property be made available to the prosecuting authority should it be needed.
[Art. 47.04, V.A.C.C.P.] If the property remains unclaimed, the court may award custody
of the property to the peace officer pending resolution of any criminal investigations
regarding the property. [Art. 47.01, V.A.C.C.P.]
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DISPOSITION OF SEIZED WEAPONS
Weapons seized in connection with an offense involving the use of a weapon or an offense under Penal Code Chapter 46 shall be held by the law enforcement agency making the seizure, unless: the weapon is a prohibited weapon identified in Penal Code
Chapter 46, in which event Article 18.18, V.A.C.C.P. applies. [Art. 18.19(a), V.A.C.C.P.]
When a weapon is seized, and the seizure is not mad pursuant to a search or arres warrant, the person seizing the same shall prepare and deliver to a magistrate a written
inventory of each weapon seized. [Art. 18.19(b), V.A.C.C.P.
Civil Jurisdiction • The justice court has jurisdiction in all civil cases in which the amount in controversy is $10,000.00 or less, not including interest, unless the district or county court has exclusive original jurisdiction over a particular type of case. [§27.031, V.A.G.C.]
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We have Civil Jurisdiction sometimes not limited to $10,000
• Foreclosure of Liens on Personal Property
• The justice court has jurisdiction to foreclose mortgages and enforce liens on personal property, where the amount in controversy is within the court’s jurisdiction.
• [§ 27.031 (a)(3), V.A.G.C.]
Cases in which Justice Court Has No Jurisdiction
• The justice court has no jurisdiction of suits:
• In behalf of the State to recover penalties, forfeitures, and escheats;
• suits of divorce;
• suits to recover damages for slander or defamation of character;
• suits to determine title to land; or
• suits for the enforcement of liens on land. [§
27.031(b), V.A.G.C.]
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SMALL CLAIMS VS. JUSTICE COURT –
CIVIL (we have a lot of courts) While small claims court and justice civil court both occur in the same court room,
are presided over by the same justice of the peace, and have the same monetary
limits, they are in fact two very different courts with different rules.
A justice of the peace must always be aware of what court is involved, and be prepared to proceed accordingly.
While both courts have a maximum "amount in controversy" of $10,000,
exclusive of interest and court costs, there are several jurisdictional differences. The small claims court can award only monetary damages. [§28.003(a), V.A.G.C.] The
small claims court cannot order the other party to do or refrain from doing anything,
or award possession of property.
It can only require the losing party to pay an amount of money as a judgment.
HB 79 – Effective 1/1/12 and 5/1/13
• Modifies the Gov’t Code 27.005. Basically, Chapter 28
of the Government Code goes away (Small Claims)
however, all cases shall be treated as Small Claims.
Also mandates the Supreme Court draft new rules for
processing cases defined as “small claims”.
• Effective 1/1/12 each county’s JP’s must, by majority
vote establish local rules of administration, rules for
transferring civil cases; and transferring criminal
cases.
• ** This should have already been voted on and
passed in commissioner’s court in your county.
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We hear Interpleader cases
• Interpleader
• Interpleader is a suit to determine a right to a property held by a third person having no interest therein. [Black’s Law Dictionary 837 (8th ed. 2004).] • To be entitled to interpleader, a party must establish that it: (1) is either subject to, or has reasonable grounds to anticipate, rival claims to the same fund or property; • (2) has not unreasonably delayed filing the action for interpleader; and • (3) has unconditionally tendered the fund or property into the registry of the court. • [Petro Source Partners, Ltd. v. 3‐B Rattlesnake Refiner (1990), Ltd. 905 S.W. 2d 371, 375 (Tex. App.‐ El Paso 1995, writ denied).]
We Issue Writs •
•
•
•
•
•
•
Writs of Sequestration
Writs of Possession
Writ of Attachment (person or property)
Writ of Garnishment Writ of Execution
Writs of Restoration (Tenant’s Right to Restoration of Utilities After Unlawful Disconnect)
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All kinds of Writs •
•
•
•
•
•
•
•
•
•
•
•
•
Writ of Certiorari
Except in eviction cases, [§ 51.002(d), V.A.C.P.R.C.; Winrock Houston
Associated LTD Partnership v. Bergstrom, 879 S.W. 2d 144, 150 (Tex. App. ‐
Houston [14th Dist.] 1994, no writ); Chang v. Resolution Trust Corp., 814 S.W. 2d
543, 544 (Tex. App. Houston [1st Dist.] 1991, no writ); Crawford v. Siglar, 470
S.W. 2d 915, 917 (Tex. Civ. App. ‐‐ Texarkana, 1971, writ ref’d n.r.e.).] at the
discretion of the county court [Knolle v. Knolle, 140 S.W. 889, 890 (Tex. Civ. App.
‐ Austin 1940 no writ); St. Louis Southwestern R. Co. v. McWilliams, 61 S.W. 2d
598, 599 (Tex. Civ. App. ‐ Waco 1933, writ dism’d).] and within 90 days from the
date final judgment is signed, [Rule 579, T.R.C.P.] a case tried in justice court in
which the amount in controversy or the amount of the judgment is more than
$250.00, not counting costs, may be removed from the justice court to the county
court by writ of certiorari. [§ 51.002(a), V.A.C.P.R.C.]
And we sometimes find you in another state.
• A justice court has the authority to issue an out‐of‐state citation. [National Bank of Commerce v. Walker Brokerage Co., 198 S.W. 174, 176 (Tex. Civ. App. ‐ Amarillo 1917, no writ).]
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We have Discovery ! • Justice Court – unlimited • Small Claims – Judge can place limitations on discovery Evictions (we decide if you can stay in your residence ) • Also includes “forcible entry and detainer
and forcible detainer suits.
• A person commits a FED “if the person enters
the real property of another without legal
authority or by force and refuses to
surrender possession on demand.” Prop
Code 24.001
• Refusing to surrender possession of real
property on demand
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Evictions HB 1111 – Effective 1/1/12
• Amends Sec. 24.0053 Property Code –
• If pauper’s Affidavit to appeal filed, court
shall give the tenant written notice when
Pauper’s affidavit is filed that says:
And we love Pauper’s Affidavits just like you do! • The amount of the initial deposit of rent stated in the judgment that the tenant must pay into the justice court registry; • Whether the initial deposit must be paid in cash, cashier’s check, or money order, and to whom payable
• Calendar date by which the intial deposit must be paid into the justice court registry; must be within 5 days of the date the tenant files the pauper’s affidavit. (need only show hours JP office is open) 51
10/17/2016
We love them ! • JP clerk cannot send to the county clerk (6) six days
after filing of pauper’s affidavit.
• (a) During an appeal of an eviction case for
nonpayment of rent, the justice court on request
shall immediately issue a writ of possession,
without hearing, if:
And if they don’t do it right on an appeal, we get it back and we are OK with that too. (1)
a tenant fails to pay the initial rent deposit into
the justice court registry within five days of the
date the tenant filed a pauper's affidavit as
required;
(2) the justice court has provided the written
notice required; and
(3) the justice court has not yet forwarded the
transcript and original papers to the county court.
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Get out
(a‐1) The sheriff or constable shall execute a
writ of possession under Subsection (a) in
accordance with Sections 24.0061(d) through
(h). The landlord shall bear the costs of
issuing and executing the writ of possession.
Headed your way (a‐2) The justice court shall forward the transcript and original
papers in an appeal of an eviction case to the county court
but may not forward the transcript and original papers before
the sixth day after the date the tenant files a pauper's
affidavit,
except that, if the court confirms that the tenant has timely
paid the initial deposit of rent into the justice court registry
in accordance with Section 24.0053, the court may forward
the transcript and original papers immediately.
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Eviction Appeals
a‐2) (continued) If the tenant has not timely paid the initial
deposit into the justice court registry, the justice court on
request shall issue a writ of possession
• notwithstanding the fact that the tenant has perfected an
appeal by filing a pauper's affidavit that has been approved
by the court.
• The justice court shall forward the transcript and original
papers in the case to the county court for trial de novo,
notwithstanding the fact that a writ of possession under
this section has already been issued.
• a‐3) Notwithstanding Subsections (a) and (a‐2), the justice court may not
issue a writ of possession if the tenant has timely deposited the tenant's
portion of the rent claimed by the tenant under Section 24.0053(d).
• (a‐4) During an appeal of an eviction case for nonpayment of rent, if a
tenant fails to pay rent into the justice court or county court registry as
the rent becomes due under the rental agreement in accordance with
the Texas Rules of Civil Procedure and Section 24.0053, t
• he landlord may file with the county court a sworn motion that the
tenant failed to pay rent as required. The landlord shall notify the tenant
of the motion and the hearing date.
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What does that mean? So what does that mean? • If the justice court clerk has sent the file to the
county, clerk, JP does not have jurisdiction to issue
the Writ of Possession.
• If the tenant does not put rent money into the court
registry, the justice shall issue the writ of possession
but the case is still “on appeal”. They just can’t
continue to live there while the appeal is going on.
The appeal doesn’t stop, the tenant just can’t live
there.
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EVICTIONS ‐ MANUFACTURED HOMES (we move mobile homes) • Evictions involving manufactured homes follow procedures similar to those for other residential evictions but that are specific to manufactured homes. • These procedures apply only to the relationship between a landlord who leases property in a manufactured home community and a tenant leasing property in the manufactured home community for the purpose of situating a manufactured home or a recreational vehicle on the property
Jurisdiction and Venue of Tenant’s Judicial Remedies for Repairs (we decide if landlord needs to repair) •
•
•
•
•
•
•
•
•
tenant’s judicial remedies under Section 94.156, Property Code, shall include:
an order directing the landlord to take reasonable action to repair or remedy the
condition;
an order reducing the tenant’s rent, from the date of the first repair notice, in proportion to the reduced rental value resulting from the condition until the condition is repaired or remedied;
a judgment against the landlord for a civil penalty of one month’s rent plus $500;
a judgment against the landlord for the amount of the tenant’s actual damages; and
court costs and attorney’s fees, excluding any attorney’s fees for a cause of action for damages relating to a personal injury. [ § 94.159, V.A.Pr.C.]
The justice, county, and district courts have concurrent jurisdiction of an action except that the justice court may not order repairs. [§ 94.159(c), V.A.Pr.C.].
Venue is governed by Section 15.0115, Civil Practice and Remedies Code.
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EVICTIONS ‐ COMMERCIAL AND AGRICULTURAL TENANTS
(Yes, we even evict on agricultural tenants! ) • The rights of a commercial tenant to be free from interference by the landlord are essentially same as those of a residential tenant. [§§ 92.008 and 93.002, V.A.Pr.C.]
Get out
• The procedure for evicting (forcible detainer or forcible entry and detainer) a commercial or agricultural tenant is found in Chapter 24, Texas Property Code.
• This is the same procedure used in residential evictions, unless there are special provisions found in Chapter 93, Texas Property Code, as set out below.
• Unlike residential evictions, the lease controls the terms and supersedes any statutory rights found in § 93.002 of the Code.
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10/17/2016
We Issue Distress Warrants (so we can de‐stress) • The purpose of a distress warrant is to provide a landlord with a simple, inexpensive, speedy and effective way to hold (distrain) a commercial or agricultural tenant’s property until the landlord can foreclose the landlord’s lien in the court to which the distress warrant is returned. [McKee v. Sims, 45 S.W. 564, 565 (Tex. 1898); Keep ’Em Eating Co. v. Hulings, 165 S.W. 2d 211, 213 (Tex. Civ. App.‐ Austin 1942, no writ); Webb v. Bergin, 38 S.W. 2d 841,842 (Tex. Civ. App. – Waco 1931, writ dism’d).]
De‐stressing here! • A distress warrant does not create a lien. A landlord’s lien is given by law. A distress warrant simply impounds the tenant’s property while a suit to foreclose the lien is pending. [Stephens v. Cox, 255 S.W. 241,242 (Tex. Civ. App.‐ Austin 1923, no writ).] • Although a distress warrant is used as a means of enforcing the landlord’s lien, [Marsafis v. Pitman, 5 S.W. 404,406 (Tex. 1887) the landlord’s right to foreclose the lien, does not depend on the service or levy of a distress warrant. [Austin v. Fields, 300 S.W. 247, 248 (Tex. Civ. App. ‐ Eastland 1927, no writ).]
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10/17/2016
We Issue WRITs OF REENTRY
• A writ of reentry is a remedy available only to a tenant who has been wrongfully locked out of leased premises by the landlord. • Residential and commercial tenants may seek a writ of reentry by applying ex parte to a justice of the peace. • A writ of reentry is the same for residential and commercial properties; however the Property Code contains different sections on each.
We Issue TURNOVER ORDERs (and we like them) The purpose of the turnover statute is to aid a judgment creditor whose judgment debtor owns property that cannot readily be attached or levied on by ordinary legal process. This statute allows a judgment creditor to get aid in collection from the court
in the form of an order which requires the debtor to bring to the court (hence, "turnover") all documents or property used to satisfy a judgment. The effect is to require the burden of production of property that is subject to execution to be placed with the debtor instead of a creditor attempting to satisfy a judgment. [§ 31.002, V.A.C.P.R.C. see Ex Parte Johnson, 654 S.W. 2d 415, 418 (Tex. 1983).]
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10/17/2016
We Enforce Deed Restrictions
• Suits to enforce deed restrictions are within the jurisdiction of the justice court as civil cases. 27.034 VAGC
• If a defendant is found to have violated a “restrictive covenant” of a deed, the defendant may be liable for the costs to cure the violation and may, at the court’s discretion, be assessed a penalty not to exceed $200.00 for each day of the violation. A prevailing party that “asserts” a cause of action for breach of deed restrictions shall be awarded attorney’s fees and costs of court. Deed Restrictions
• No dollar limit on the amount in controversy for enforcement of deed restriction cases; however, cannot change a structural change to a dwelling. 60
10/17/2016
Tow Hearings
• 2007, legislature moved responsibility for towing regulation from TxDOT to Texas Department of Licensing and Regulation, including tow hearing procedures. And then decided to let the justices of the peace hear them. Trial of Right of Property
• Remedy to a third party claimant when personal property has been levied upon, and when the claimant is not a party to the writ under which the levy is made. Proves a means of giving a claimant a summary method of asserting title or right of possession. • (Levied upon via distress warrant, execution, sequestration, attachment, etc. ) 61