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Some Texas Judges Not Complying with State Law on Misdemeanor Cases

by Ed Lyon

Since 2010, Texas has been able to reduce the size of its prison system from an all-time high of 127 units to its current 104 units. A major factor contributing to this reduction is the use of diversionary programs for non-violent and drug offenders as mandated by the Texas Legislature.

In 2017, the legislature used the same method to take aim at reducing what the law’s sponsoring Texas Senator Judith Zaffirini characterized as the state’s “modern debtors’ prisons.” Unfortunately, however, the law is not mandatory so judges are free to disregard it altogether.

The problem concerns the 2,100 or so municipal judges and justices of the peace and how they deal with the lowest level of state crimes—class C misdemeanors. A large number of class C misdemeanors are traffic offenses, not usually a jailable offense. The 2017 law clearly states that judges have the discretion to waive fines and encourage alternatives, such as longer-term payment plans and community service in lieu of fines.

One of the law’s initial supporters was 23-year veteran Midland, Texas, Judge David Cobos. One of the defendants in his court since the law’s passage was among the state’s poor, which comprise about 15 percent of its population. The charge was driving without car insurance.

Using his legislatively expanded discretion, Judge Cobos ordered the defendant to use the $300 fine money to purchase car insurance. “If I had taken $300 up front, she’d have been behind the whole year,” stated Judge Cobos. He still believes jail is appropriate for some class C offenders, namely repeat recidivists.

Still, many of Texas judges hearing about 5.5 million class C cases each year refuse to comply with the law. Some judges have been quoted as telling defendants: “Community service is not available in my court,” according to Texas Appleseed criminal justice project director Mary Schmid Mergler.

A bill introduced in the 2019 Texas legislative session was designed to urge judges to consider alternatives to jail in class C cases. The bill’s only real definitive ‘teeth’ is a clarification that if a class C defendant pays his or her fine at the courthouse, he or she should not be arrested on the outstanding warrant based on the fine.


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