We have a candidate for worst decision of the year. Today, the CCA overruled over a hundred years of law and said that multiple fines assessed in a single trial "run" concurrently. As usual, Judge Cochran quickly pierces the logic on that bizarre decision. Read her dissent.

Shannon, think this would justify a legislative solution?

And, an unusual split in the Court. Johnson and Holcomb, J.J., for stacking fines, but Hervey and Keasler, J.J., against!!

The opinion is also reminiscent of Ex parte Taylor, where the Court told us long-standing practice (SPA and DAs both filing PDRs/BOM)does not necessarily equal legitimate practice.

JAS

As the Otara Millionaires Club (OMC) might rap/sing "How Bizarre."

IN THE COURT OF CRIMINAL APPEALS


OF TEXAS



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NO. PD-0001-07


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THE STATE OF TEXAS



v.



JAMES CROOK, Appellee



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ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE EIGHTH COURT OF APPEALS


EL PASO COUNTY



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Cochran, J., filed a dissenting opinion in which, Womack, J., joined.



O P I N I O N



Time runs; money is paid. A term of imprisonment runs for a period of time; a fine is paid, either immediately or over a period of time. One term of imprisonment may run concurrently with another term of imprisonment. One fine cannot "run" concurrently with another fine. At least not until today. Before today, all fines could be paid at the same time, i.e. concurrently, but each fine had to be paid.

Never before has a $200 fine for speeding "run" with a $100 fine for simultaneously failing to wear a seat belt. One has never before paid the fine for the single most expensive traffic ticket violation and let all the others ride free. But a new day has dawned. Traffic-ticket scofflaws may rejoice.

I respectfully dissent.



Filed: February 6, 2008

Publish

The dissent is correct; this is obviously in need of a legislative correction.

The problem with "100 years of history", as the opinion points out, is that the cases cited are prior to the legislature changing 3.03(a).

I also note that the TDCAA testified in favor of the change before the legislature. Tom Hannah, the Jefferson County DA speaking for the TDCAA, "testified that Chapter 3 was a "finely worked out balance" with prosecutors receiving the ability to clear crowded dockets and defendants receiving the right to concurrent sentences."

Cases decided on legislative history are usually going to be messy. However, there is a 'fix' available if the legislature thinks this needs to be 'fixed'.

The State should want an immediate fix. The State uses the fine money to cover its budget in part. Collections from fines will drop dramatically under this opinion, cost taxpayers lots of dollars they will have to make up.

Would this opinion also stand for the proposition the CSR hours would be required to "run" cc in a probation case? Or is that saved because probation is not a "sentence?"

Now is the time to be a civil lawyer, filing a class action lawsuit against the state, counties and cities for reimbursement of decades of improperly collected fines. Just another example of how poorly the majority thought this through.

Motion for rehearing: granted.

quote:

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Originally posted by sjf:

I also note that the TDCAA testified in favor of the change before the legislature. Tom Hannah, the Jefferson County DA speaking for the TDCAA, "testified that Chapter 3 was a "finely worked out balance" with prosecutors receiving the ability to clear crowded dockets and defendants receiving the right to concurrent sentences."

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I'm sure Mr. Hannah did so -- especially if he assumed that the historical understanding in regard to fines would be maintained.

What I notice in the majority opinion is a complete lack of any legislative history relevant to fines themselves, as distinguished from prison time. Knowing what I know about the legislative process, my guess is that none of the parties involved back then ever considered that a court might read the new language and lump in fines with prison time when it comes to concurrent sentences, so it wasn't discussed.

But so be it. If people want this changed, it seems like a simple-enough fix. I'm not even sure who would object, including the judges in the plurality in Crooks -- after all, they based their ruling on interpretation, not some overarching policy reason. Right or wrong, at least it's not an example of them substituting their policy wisdom for the legislature's.

quote:

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Originally posted by JB:
The State should want an immediate fix. The State uses the fine money to cover its budget in part. Collections from fines will drop dramatically under this opinion, cost taxpayers lots of dollars they will have to make up.

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Don't fines stay locally? I thought court costs went to the state, and fines stayed home -- meaning it is the LOCAL governments who are in the squeeze.

You know who I mean -- the ones that fund your offices (ahem).

Whatever happened to the notion that for decades the courts have interpreted the provision as requiring fines to be paid separately and the legislature never bothered to amend the law to correct such an appellate "mistake"?

What about Rocky Mountain v. State, 789 SW2d 663:

Appellant's sole point of error complains that the trial court erred in cumulating the fines imposed in each of 38 counts of forgery for which he was convicted. He argues that, rather than assessing a cumulative fine totaling $ 7,600, the court should have allowed the thirty-eight $ 200 fines to run concurrently, amounting to a total fine of $ 200. The court ruled that the probated jail sentence of one year for each of the 38 counts was to run concurrently.

Section 3.03 of the Texas Penal Code provides:

When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, sentence for each offense for which he has been found guilty shall be pronounced. Such sentences shall run concurrently.

Tex. Penal Code Ann. � 3.03 (Vernon 1974) (emphasis added).

Appellant argues that Gordon v. State, 633 S.W.2d 872, 877 (Tex. Crim. App. 1982), and Smith v. State, 753 S.W.2d 456, 457 (Tex. App.--Houston [14th Dist.] 1988, no pet.), conclusively hold that where the defendant is charged with two or more counts arising from the same criminal episode, and is tried in one proceeding, the court is bound to allow the resulting sentences to run concurrently. We agree. Gordon and Smith, however, do not reach the issue in this case. The issue here is whether the legislature, in section 3.03, intended all punishment, i.e., prison sentences and fines, to run concurrently, or whether the rule applies only to prison sentences. Gordon and Smith, both involve only the cumulation of prison sentences, and are, therefore, not dispositive of the issue before us.

The State argues that, as a matter of common sense, only that portion of a sentence involving the passage of time can "run." See BLACK'S LAW DICTIONARY 1197 (5th ed. 1979) (defining "run" as having "applicability or legal effect during a prescribed period of time"). Thus, according to the State, the legislature could not have intended the term "sentences" in section 3.03 to include fines, because fines do not involve the passage of time; therefore, fines cannot "run."

We have not found any cases that interpret the meaning of the term "sentence" in section 3.03. However, our research of the law controlling the cumulation of "sentences" reveals that fines have been cumulated in those same cases where prison sentences are required to run concurrently.

As far back as 1899, the Court of Criminal Appeals recognized that judgments in misdemeanor cases imposing pecuniary fines are cumulative. Ex parte Banks, 41 Tex. Crim. 201, 53 S.W. 688, 689 (1899). Texas courts have consistently followed that holding. See Ex parte Minjares, 582 S.W.2d 105, 106 (Tex. Crim. App. [Panel Op.] 1978) ("judgments in misdemeanor convictions imposing pecuniary fines as punishment have been held not concurrent but cumulative"); Evans v. State, 169 Tex. Crim. 295, 333 S.W.2d 387, 388 (1960) (fines cumulated, jail terms concurrent -- trial court made no effort to cumulate jail sentences); McCurdy v. State, 159 Tex. Crim. 477, 265 S.W.2d 600, 601 (1954) (fines cumulated, jail terms concurrent [**7] -- trial court made no effort to cumulate jail sentences); Bristow v. State, 160 Tex. Crim. 111, 267 S.W.2d 415, 416 (1954) (fines cumulated, jail terms concurrent -- trial court made no effort to cumulate jail sentences); Ex parte Hall, 158 Tex. Crim. 646, 258 S.W.2d 806, 807 (1953), cert. denied 351 U.S. 955, 76 S.Ct. 852, 100 L.Ed. 1478 (1956) (multiple fines must be satisfied separately); Ex parte Williams, 133 Tex. Crim. 116, 109 S.W.2d 171, 172 (1937) ("where the judgment assessed is a pecuniary fine," sentences do not run concurrently).

While most of the cases referenced were decided prior to the enactment of section 3.03 in 1973, we find no rationale for assuming that the legislature meant to alter the long-standing rule that pecuniary fines are cumulated for different counts in the same criminal episode. We overrule appellant's point of error, and affirm the judgment of the trial court.

As prosecutors who rely on traffic ticket funds, as JB contends, we should hope the dissent's sprawling conclusions about the decision are incorrect.

The majority construes 3.03 to make certain fines "run" concurrently. 3.03 is penal code section and the offense in Crooks was barratry (Pen. Code 38.12 usually a 3rd degree felony), where the fine imposed was 10,000.

I think, at least a cogent argument can be made that 3.03 applies only to Penal Code offenses and not to the Transportation Code.

While I disagree with the majority, I also disagree with the far-reaching conclusions of the dissent. It will be interesting when a traffic appeal goes up to the CCA. Maybe we will get our answers then.

Perhaps if the legislature looks at this issue, they might adjust the files for inflation. Not often, but every now and then I see a defendant for whom a $10,000 is just a drop in the bucket compared to what would be just.

Will this result in juries returning longer sentences to compensate for the inability to assess large monetary fines?

Aggregation: Can you give me your thoughts on why Crook may not apply to Transp. Code offenses? I am considering whether it applies to Parks and Wildlife Code offenses, and PC 1.03 (b)seems to indicate "yes."

Everybody: Crook would not affect fines assessed in guilty pleas, as long as each case is called and adjudicated separately, correct?

"Not often, but every now and then I see a defendant for whom a $10,000 is just a drop in the bucket compared to what would be just."

In some countries (Norway comes to mind) traffic fines are imposed based upon a person's income. In order to deter the wealthy from speeding, and simply paying the occasional fine (as is practice in the US), they rack up the charges based on your income. In yet another example of how the computer age is effecting everyone: The fines used to be handed out more-or-less on the 'honor system', with the cop asking your general income and looking it up on a table/form he carried. But now, the cop plugs your license in a computer and gets your income straight from the central tax record. If you are very rich - you pay a very hefty fine. US $10,000 fines are certainly not unheard of for wealthy executives, hockey stars, etc. One fine I read about -- $71,000 for 45 mph in a 25 mph (I think it was a school zone).

It is an interesting concept.

I agree that 1.03(b) causes problems. I am just trying to think of ways (already) to distinguish Crooks from cases I am currently handling. I know that the majority holding was broad but the factual scenario was pretty limited. Same crime but many different counts; a penal code crime; etc.

Maybe with different facts, the court reaches a different conclusion. Not sure, just thought I would suggest it.

Wait for rehearing.