I wonder if this decision is being interpreted too broadly. This decision would apply to multiple charges filed in one pleading (complaint, information or indictment)or charges filed separately that were consolidated. It would not apply to charges filed in separate pleadings that were not joined together in a single criminal action. In my opinion, the traffic ticket language in Cochran's dissent overstated the situation; if the cases are not consolidated and tried together, two different fines would have to be paid. Only if the state consolidated the two cases would the fines run concurrent.

But, that's the point, Ken. For decades, officers have been able to issue multiple citations in a single stop (e.g., speeding, no DL and illegal lane change) and all those cases could be resolved in a single proceeding with multiple fines. Let's face it, there isn't enough time for one trial much less multiple trials if that's the game required for collecting separate fines.

I can see the Class C ticket defense lawyers just salivating over this decision. They have a built in way to force the reduction of fines to a single case. Collections will drop significantly under that game.

I guess what I find troubling is that, regardless whether the CCA and other appellate courts got the reading of the statute correct, it certainly has been consistently applied for over 100 years. There simply is no good reason for changing that interpretation through modification of the appellate conclusion. The Legislature has been available every two years for a very long time if anyone thought the CCA and other appellate courts got it wrong.

Looks like the traffic court people agree with Ken ...



New rule brings confusion but no respite from parking fines

Court ruling has lower courts trying to figure out next step.

By Chuck Lindell
AUSTIN AMERICAN-STATESMAN
http://www.statesman.com/news/content/news/stories/local/02/08/0208fines.html

Friday, February 08, 2008

Municipal courts, prosecutors and legal departments across Texas scrambled Thursday to weigh the implications of new rules limiting the size of many court-imposed fines.

The early news is bad for anyone hoping to save money on multiple traffic tickets.

Parking tickets also are exempt from the new rules, announced Wednesday in a Texas Court of Criminal Appeals decision in the case of a former lawyer found guilty of 13 counts of improperly soliciting clients.

James Crook of El Paso had received 13 separate $10,000 fines and seven years of probation.

In a 5-4 ruling, the state's highest criminal court said Crook's fines must "run concurrently" � the same way multiple prison terms can run at the same time. So, instead of paying $130,000, Crook will pay $10,000, and every other fine will be considered paid in full because they "run" at the same time.

State law requires most sentences to be served concurrently when they arise from the same criminal episode and are prosecuted together. And, because a sentence includes both the fine and the jail time, they must be served concurrently, the ruling stated.

Courts and legal departments were working Thursday to digest the ruling and two dissenting opinions.

"My e-mail has been lighting up with fireworks," said Ryan Turner, general counsel for the Texas Municipal Courts Education Center. "I'm trying to tell people to stay calm."

Practically speaking, Turner said, the ruling will not affect most cases in municipal and justice of the peace courts because of the way misdemeanor charges are handled. Class C misdemeanors, which are punished by fines, are charged in complaints, which rarely involve multiple counts of the same crime, unlike felony indictments.

So, if a driver is stopped and ticketed for speeding, no insurance and no seat belt, the charges are usually listed in three separate complaints, Turner said.

"Seldomly are Class C misdemeanors prosecuted as a continuing criminal episode," he said.

Turner cautioned that it's too early to know the full implications of the ruling.

"Obviously, every judge is going to have to read this case on their own and figure out what they think it means," he said.

Austin's legal department was researching the ruling Thursday. Until that review is complete, "it's business as usual for us," said Rebecca Stark, Austin Municipal Court clerk.

"A large number of our criminal cases are not the result of one criminal episode. So, the majority of our criminal cases may not (be affected), but we're looking at it," Stark said.

One question is settled, she said. "At this time, it definitely doesn't affect" parking fines, she said. "Parking is not a criminal case."

Apparently, Judge Cochran's dissent has led to a near-riot among the Class C cognoscenti, requiring the Texas Municipal Court Education Center to post a mini-disclaimer on the front page of their website:

http://www.tmcec.com/tmcec/public/files/File/About%20Us/State%20v%20Crook.pdf

She's such an appellate diva.

Ah, the power of the pithy quote.

Mr. Turner's memo does make an interesting point. The opinion is a plurality. Presiding Judge Keller concurred without opinion, so technically the case can't be used as a precedent. On the other hand, Keller didn't explain her concurrence, leaving us all to wonder what distinction might be drawn by the facts.

I'm betting that further reflection by the court will cause calmer minds to prevail.

quote:

---

She's such an appellate diva.

---

Well, the appellant is a Crook.

From a Texas Lawyer article:

Charles "Chuck" Campbell, who served on the CCA from 1983 through 1994, says the CCA's decision in Crook is binding, even though the court issued a plurality opinion. However, a prosecutor might argue in a subsequent case that because Crook is only a plurality opinion, the decision is not entitled to the same precedential "integrity and respect" that five or more votes on a case would receive, says Campbell, now an assistant state prosecuting attorney.

"Anytime you're the victim of a plurality, you're going to test a plurality opinion to see whether it will hold up or not," Campbell says.

It's looking like the State Prosecuting Attorney will be filing a motion for rehearing. How about a list of the reasons the CCA should grant rehearing (serious ones)?

Reason 1: For several decades, the appellate courts of Texas have said that the statute means that fines should always be paid separately. The CCA has previously treated such settled law as having great weight, even if reasonable arguments can be made that the decisions were incorrectly decided, as the law should have some predictability and finality.

I dunno. We have had to fight very hard to get the CCA to apply statutory text rather than do anything they could to avoid it. The Grunsfeld stuff comes to mind, as do the cases slowly chipping away at defenses that are not in the penal code.

Do we really want to encourage them to ignore a statute just because "we've always done it this way"? How could we ever change bad law?

Absolutely, the result reached in this case is bad policy, but lets make sure that the fix doesn't come back to bite us somewhere else.

If they read it correctly, maybe the appropriate remedy is with the legislature.

The only thing that needs correcting by way of a motion for reheearing is the unfortunate observation in Cochran's dissent that is not accurate or necessary. That observation is what has people stirred up.

I thought that was the best part of the whole case. Her statement is not clearly wrong and raises a question that should have been considered in the original opinion.

quote:

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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.

---

This is the part of the dissent that has caused the uproar. The dissenter fails to understand that separate traffic tickets complaints are prepared for each offense and are not joined together under Penal Code Chapter 3. Thus, the fines are cumulative and not concurrent. This new opinion does not change that.

Normally, I agree with every opinion ecpressed by Judge Cochran and respect her very much. I just think she got this one wrong and should not have mentioned Class C situations. She may have been unaware that separate complaints are prepared.

I don't know that having separate filing instruments makes any difference. Offenses disposed of in the same proceeding (by trial or plea), even if pled in separate complaints, may well trigger the Crooker concurrent requirement.

The issue of cumulative v. concurrent sentences is more complex than simply saying there are separate charging instrument. The statute deals with the notion of separate trials, separate "criminal episodes" and various other factors.

There are some factors that may distinguish the traffic citations case from the Class B misdemeanor and higher crimes, but there is enough uncertainty that I feel it was appropriate for Cochran to make the rhetorical statement she did in her dissent.

And, if the statement generates enough concern that the CCA gives the opinion a second, more careful look, then it will have turned out to be a very valuable dissent.

What now?

Well, a legislative solution is the only real response that would work at this point. Or, one could take the position that the CCA, by failing to collect a majority vote on the issue, has not finally resolved and left the issue open for litigation in another case. A strange way to vote for a body that has, as its sole purpose, to resolve statewide legal issues.

Any legislative action on this?

Update: Never mind. Found a link to SB 1297. Doesn't look like much is going on with it though.

[This message was edited by David Newell on 04-20-09 at .]