It is the policy of our county court judge (only county court in our fairly rural county) to have defendants lay out fines and costs in jail, whether on an initial plea to an offense or on a MRP or MTA, as a matter of routine.

A local defense attorney has begun to make some noise about this practice. Recently, after a defendant was plead and punished on a number of cases, some initial pleas and some MRPs, and sentenced to jail w/ the requirement that she lay out fines and costs (including probation fees) after she completed her basic term, this attorney claimed that the judge was not able to do so unless he had a formal indigency hearing under CCP 43.03. The attorney argued that w/o this kind of hearing, the judge needed to release her after her term in jail was complete, essentially to give her a chance to pay before re-arresting her on a capias if she did not come up with the money.

I’ve looked over the applicable statutes, which appear to be 43.03 and 43.09. 03 says that a formal hearing and a formal written finding of indigency is required. 09, however, seems to say that in a defendant is simply “unable” to pay fines and costs, he can lay out his moneys in jail or be assigned to CS by the judge (43.09(f)). I have not yet been able to find caselaw that details how these two statutes are meant to interact.

So my questions are these, and hopefully someone can shed some light on them:

1) How do other counties handle the collection of fines and costs? Does everyone really release defendants and then pick them back up on capias pro fines when they fail to pay? It seems like keeping track of that would be a beaurocratic nightmare, and a system that is impossible to manage in our small county with limited court and county clerk personnel.

2) If other counties have defendants lay out fines in jail, are they holding the 43.03 indigency hearing in every case before making the required written pronouncement?

3) Would a simple waiver of an indigency hearing, stuck into our ordinary plea waivers and MPR waivers, solve this problem? Can this kind of hearing be affirmatively waived, allowing the judge to then sentence them to lay out their fines and costs in jail?

4) If an indigency hearing is required, how can a judge even make a determination of indigency? Must a defendant be compelled to testify as to their financial status? It seems like a defendant could refuse to testify, forcing the court to release them for the opportunity to pay (no evidence to make the affirmative finding of indigency).

Please let me know if you have any ideas. This has our county judge very concerned.

We have 2 CCLs at Law with a full-time magistrate court serving those CCLs, so it might be apples and oranges, but here is how things generally work for us.

(1) Yes. At the time of plea, the Defendant makes the election to either pay or lay out the monies. If they elect to pay, they have to go to the Collections Department in the courthouse and make arrangements before leaving. That dedicated entity is our solution to the described "bureaucratic nightmare" but might not be feasible for a more rural county.

If a Defendant has a previous capias pro fine showing in our system, our magistrate judge will not allow them to set up a payment arrangement and will require a layout or bust the plea.

(2) The indigency hearings I am aware of having been due to requests to work off the fine and court costs via community service. I don't know that I've ever seen our courts hold an indigency hearings for a layout, it's just been a case of "it's either layout or I won't accept the plea" situation.

(3) We don't have anything formal in the plea paperwork in terms of an affirmative waiver, but that's the effective result of how we are working these cases. Standard layout is at request of Defendant.

(4) Good question. Any time we've done indigency, it's been because the Defendant is the party attempting to establish indigency and therefore is carrying the burden.

We also have an office of court collections. If the person elects to make payments and fills out the form, the determination is made at that time that he/she is not indigent. The question at an MTR or capias hearing is whether or not circumstances have changed. If not, they are still not indigent.

Our judge has - on his own - converted some of the capias pro fines to community service....some of it worked, some not so well.

It is my opinion that we cannot force the layout of either probation fees or restitution, so it is only fines and costs.

On a related note.....
In JP or Municipal court, after a capias pro fine is entered, does the judge have the authority to keep the defendant incarcerated until the fine is laid out if the defendant tenders the payment?
The Judge has made a finding that the defendant intentionally did not make a good faith effort to pay and is running several class "C" cases consecutively and instructing the jailers not to release the defendant until the fine etc is laid out at $50 per day, even if all or part of the money is tendered to the jail....
Seems to me if the defendant has a someone bring the fine and court costs to the jail, there is no longer a basis upon which to hold them on a finable only offense.

This message has been edited. Last edited by: mhartman,