The Whys: Constitutional Considerations for Court Clerks
Probable Cause
Amendment 4, United States Constitution: The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Article I, Section 9, Texas Constitution: The people shall be secure in their persons, houses, papers and
possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any
person or thing, shall issue without describing them as near as may be, nor without probable cause, supported
by oath or affirmation. (Same as Article 1.06, Code of Criminal Procedure)
Bail
Amendment 8, United States Constitution: Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted. (Same as Article I, Section 13, Texas Constitution and Article 1.09,
Code of Criminal Procedure)
Article 1, Section 11, Texas Constitution: All prisoners shall be bailable by sufficient sureties, unless for capital
offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after
indictment found upon examination of the evidence, in such manner as may be prescribed by law. (Same as
Article 1.07, Code of Criminal Procedure)
Due Process: Notice and Hearing
Amendment 14, Section 1, United States Constitution: All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the laws.
Article I, Section 19, Texas Constitution: No citizen of this State shall be deprived of life, liberty, property,
privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.
(Same as Article 1.04, Code of Criminal Procedure)
Amendment 5, United States Constitution: No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use, without just compensation.
Amendment 6, United States Constitution: In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Article I, Section 10, Texas Constitution: In all criminal prosecutions the accused shall have a speedy public trial
by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and
to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of
being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have
compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State
and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State
shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as
the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on
an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise
than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia,
when in actual service in time of war or public danger.
Article I, Section 15, Texas Constitution: The right of trial by jury shall remain inviolate. The Legislature shall
pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. Provided, that
the Legislature may provide for the temporary commitment, for observation and/or treatment, of mentally ill
persons not charged with a criminal offense, for a period of time not to exceed ninety (90) days, by order of
the County Court without the necessity of a trial by jury.
Article 1.05, Code of Criminal Procedure: In all criminal prosecutions the accused shall have a speedy public
trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him,
and to have a copy thereof. He shall not be compelled to give evidence against himself. He shall have the right
of being heard by himself, or counsel, or both; shall be confronted with the witnesses against him, and shall
have compulsory process for obtaining witnesses in his favor. No person shall be held to answer for a felony
unless on indictment of a grand jury.
Article 1.12, Code of Criminal Procedure: The right of trial by jury shall remain inviolate.
Innocent Until Proven Guilty
Section 2.01, Penal Code: All persons are presumed to be innocent and no person may be convicted of an
offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been
arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at
his trial.
Open Court
Amendment I, United States Constitution: Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.
Article I, Section 8, Texas Constitution: Every person shall be at liberty to speak, write or publish his opinions
on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the
liberty of speech or of the press. (Same as Article 1.16, Code of Criminal Procedure)
Article 1.24, Code of Criminal Procedure: The proceedings and trials in all courts shall be public.
Waiver of Rights
Article 1.14, Code of Criminal Procedure: The defendant in a criminal prosecution for any offense may waive
any rights secured him by law…
Discuss Why…
The facts:
A police officer stops a motorcyclist for speeding. The motorcyclist is not wearing a helmet and cannot show
that he is exempt from having to wear one. He is cited for only the helmet violation, which orders him to
appear in the municipal court by a certain date. He does not appear, after all, what right does the government
have to require someone to wear a helmet?
The court has a process whereby if the defendant misses a court date, the clerk will send the defendant a show
cause notice for the defendant to appear and show cause for why he did not make his appearance previously.
If the defendant misses that show cause date, the clerk will issue the warrant for the defendant’s arrest, and
affix the judge’s signature before sending it to the police department. The judge is only at the court once a
week, and the judge trusts the clerk to follow this process. The defendant, again, ignores the notice, and the
clerk follows this procedure, with the warrant being issued for the helmet violation.
A month later, the defendant is again stopped for speeding. The officer finds the warrant and places the
defendant under arrest. In a search incident to arrest, the officer discovers a pipe filled with marijuana. The
defendant is then placed under arrest for the drug possession.
The whys:
What is the purpose of a show cause hearing? When is one necessary? Why?
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What must be determined before an arrest warrant is issued? How is this defined? Was this determination
made here?
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Consider this:
Would the analysis change if once the defendant failed to appear, the clerk prepared an affidavit outlining that
the defendant failed to appear pursuant to the citation, and then again pursuant to the show cause notice, and
the judge then issued the arrest warrant for the helmet violation?
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Discuss Why…
The Facts:
The defendant is a 22-year-old man with a slight drinking problem, who makes a habit of sleeping on friend’s
couches, though “legally” he lives with his parents. He is a repeat customer in the municipal court, frequently
being cited by police for disorderly conduct, criminal mischief, trespassing, public intoxication, and jaywalking.
But…he never actually appears; the court has over a dozen outstanding warrants for this individual.
Finally, he is arrested without a warrant when an officer catches him urinating on the officer’s vehicle. The
defendant goes before the magistrate who is on duty, who proceeds to release the defendant without a bond,
but on an order to appear in the municipal court. The court employees don’t hold their breath.
But amazingly, he appears! The defendant says he wants to see the judge, but the judge is not there that day.
So he asks what his options are, and the clerk tells him he can enter his plea and that the court has a process
whereby the clerk can take the plea and allow the defendant to go on a payment plan, if the defendant pays at
least $50 toward the fine. The defendant tells the clerk he does not have the money to pay anything that day.
Since he cannot see the judge, and cannot get on a payment plan, he leaves claiming that he made his
appearance.
Now what? The court wants to resolve these cases – the defendant has 20 charges pending in the court, and
the city council is pressuring the court to collect the fines and fees on all these charges (the system shows he
owes over $12,450)! So the city contracts with OmniBase to have another enforcement option, and turns the
defendant over to deny renewal of the defendant’s driver’s license. A few years later, it works! The defendant
wants to finally get a job, and can’t renew his license because of the holds from the municipal court. He brings
in an attorney, who wants to post a bond to get his client a court date, in front of the judge. The judge is so fed
up with this defendant, that the judge has told the clerk to set a bond of $100,000 and only allow a cash bond.
The Whys:
How common is this? Do we sometimes tend to relax the rules when dealing with people who themselves
don’t follow the rules?
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Should the city be pressuring the court to collect the money? How should the court respond?
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What is the purpose of bond? When can the court require a bond be set on a defendant? What kind of bond
can it be? Do you see any issue with the amount of the bond? What if the judge had refused to allow a bond?
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Discuss Why…
The Facts:
The municipal court is on a mission to go paperless. Police officers use electronic ticket writers that are
automatically uploaded to the court’s case management software. Everything is done in the computer by
affixing electronic signatures. Nothing is printed – and the city likes it that way. It plays into the city’s image of
being “green,” but more importantly, it saves money on printing equipment, ink, and paper costs.
Defendant was issued a citation for not wearing a safety belt. He signed the citation, promising to appear and
did later appear. He entered a plea of not guilty, intending to argue that he was wearing one, but took it off to
reach for his insurance card in the glovebox. His trial date was set for two months later.
The city was furious that they would have to pay a prosecutor to deal with a seat belt violation, but knew
better than to pressure the prosecutor to dismiss the case. Instead, the city suggested to the judge that he just
listen to the defendant’s case without the prosecutor there. Furthermore, the city did not want to pay the
costs of summonsing and impaneling a jury. Talk about the postage costs, the officer having to serve the juror
summons, and even the electricity to have all those people in the courthouse when it would otherwise be
closed!
The clerk wondered what paperwork needed to be sent to the defendant, and the city administration
reminded the clerk that the court was paperless and the defendant could see the paperwork when he got to
court and could use one of the computer screens. After all, the defendant knew was he was being charged
with!
The Whys:
What exactly does it mean to be “paperless?” What paper would still have to exist?
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How does the defendant receive notice of the charge filed against him? When must the defendant receive this
notice? Why is this important?
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Can the defendant request a jury trial? Who has the pay the cost of the trial? Is there any cost that can be
passed onto the defendant? Can the trial happen without the prosecutor there?
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Discuss Why…
The Facts:
The defendant (a 17-year-old) was charged with disorderly conduct for using extremely vulgar language and
obscene gestures at a city park. The judge did not want to convict the defendant and have it go on the
defendant’s record, so the judge put the defendant on deferred disposition with several conditions: pay a
special expense fee, pay the court costs, not receive any other offenses or be arrested for 180 days, attend an
anger management class, attend a parenting responsibility class, and perform 20 hours of community service
at the park. The defendant had 180 days to complete the conditions.
On the 180th day, the clerk noticed that the defendant never paid the special expense fee or court costs or
turned in proof of the community service or class attendance. The court set the case for a show cause hearing,
based on the date that was given to the defendant in the original order. That date came and went, and the
defendant did not show up. The clerk then entered the case as a conviction in the system, assessing a fine on
both charges and calculating the court costs, and prepared a capias pro fine ordering the arrest of the
defendant for the unpaid fines and costs, that the judge signed.
The defendant called the court to find out when his court date was, and the clerk informed the defendant that
he had a “warrant” out for his arrest. The defendant claimed he never received notice of the show cause
hearing, or else he would have been there to explain to the judge that his mother had died and he was having
to raise his younger siblings and work two jobs. The defendant then asked if the judge could see him so he
could have a hearing. The clerk said no, because the conviction was entered and already reported to DPS, so
the defendant asked for a receipt showing what money he owed and what it was for. The clerk didn’t know
how to prepare that.
The Whys:
What was the point of the show cause hearing in this situation? When is the defendant entitled to notice of
the show cause hearing? Why is the defendant entitled to notice?
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Was the conviction properly entered? What is the date of conviction? What is the judgment?
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Does the defendant have the right to request a receipt of the costs? What must the clerk prepare, if anything?
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Discuss Why…
The Facts:
The city is expecting a large trial that will attract a lot of media attention. The star NFL quarterback is charged
with Class C assault in the municipal court and is set for trial. The defendant has hired personal security, as he
had been receiving death threats recently from his lackluster performance and proclivity towards throwing
pick sixes the past few games. His security crew requested the security plans from the court so they could
prepare a strategy for getting the quarterback into and out of the courtroom safely and quickly.
The prosecutor remembered how the angry mob mentality had derailed the legislative process a few months
earlier, and really didn’t want to be on TV as the person who prosecuted the quarterback – he still had some
fans! So the prosecutor asked the court to close the courtroom to keep the media and public out. The judge
didn’t want a circus, so he agreed.
The newspapers, of course, called the court to ask for the charging instrument and a copy of the paperwork in
the court’s file. What a headache to have to copy this and give to each newspaper or media reporter who
called! The judge and clerk tried to establish a policy on when they would release records.
The Whys:
Must the court release the security plans? Why might the court want to or not want to?
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Should the court treat the defendant any differently because of his celebrity status?
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Can the judge decide to limit who can come into the court? Can the judge ever close the courtroom?
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Must the court release the defendant’s case information to the media? Why is the media able to get this
information?
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