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Paul
Paul, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 100
Experience:  Juris Doctor from UTulsa. Practicing attorney in Oklahoma. Experience as a criminal prosecutor.
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My question has to do with Texas HB 3060 (capias profine) My

Resolved Question:

My question has to do with Texas HB 3060 (capias profine) My concern is that my county does not follow the dictates of this law. Defendants are arrested thrown in jail and are told they PAY or LAY. I thought that the PAY or LAY practice was struck down by the US SURPREME COURT 30 years ago. I have tried to get a ruling from my County Attorney but he will not respond. And will not even communicate with me about the issue. I am a Non Lawyer Justice of the peace. I therefore realize that my concern could be groundless. BUT I WANT MY MIND PUT AT REST. PLEASE COMMENT.
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Paul replied 5 years ago.
DearCustomer

Here is the statute that controls capias pro fine in Texas:

Art. 45.045. [918] [1013] [978] CAPIAS PRO FINE. (a) If the
defendant is not in custody when the judgment is rendered or if the
defendant fails to satisfy the judgment according to its terms, the
court may order a capias pro fine issued for the defendant's arrest.
The capias pro fine shall state the amount of the judgment and
sentence, and command the appropriate peace officer to bring the
defendant before the court or place the defendant in jail until the
defendant can be brought before the court.
(b) A capias pro fine may not be issued for an individual
convicted for an offense committed before the individual's 17th
birthday unless:
(1) the individual is 17 years of age or older;
(2) the court finds that the issuance of the capias pro fine
is justified after considering:
(A) the sophistication and maturity of the individual;
(B) the criminal record and history of the individual; and
(C) the reasonable likelihood of bringing about the
discharge of the judgment through the use of procedures and
services currently available to the court; and
(3) the court has proceeded under Article 45.050 to compel
the individual to discharge the judgment.
(c) This article does not limit the authority of a court to
order a child taken into custody under Article 45.058 or 45.059.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1971,
62nd Leg., p. 2991, ch. 987, Sec. 6, eff. June 15, 1971. Renumbered
from Vernon's Ann.C.C.P. art. 45.51 and amended by Acts 1999, 76th
Leg., ch. 1545, Sec. 45, eff. Sept. 1, 1999. Amended by Acts 2003,
78th Leg., ch. 283, Sec. 31, eff. Sept. 1, 2003.
--------------------

Additionally, here is a statement from the Supreme Court of Texas on the subject:
http://www.courts.state.tx.us/tjc/resolutions/81st/Allow%20Capias%20Pro%20Fine%20Hearings%20by%20VTC.pdf

Another source that you may find helpful can be found at:
http://www.tmcec.com/newsletter/Leg.%20Update%202007/Warrants.pdf

It seems clear that the court has the authority in Texas to hold someone in jail based on capias pro fine. I can find no Supreme Court decisions that state otherwise. However, if I am understanding you correctly, you are concerned about the Habeas Corpus issues involved with the practice of holding a person in jail over a fine. Higher courts have consistently found that it is within the purview of the municipal court to hold persons based on capias pro fine. (see: http://www.altlaw.org/v1/cases/527229). To do so however, the court must bring that person before the court issuing the warrant either immediately after the arrest or no later than the next business day.

I hope this helps!

If I have answered your question, please click Accept. I am happy to answer follow-up questions if you need further clarification.

Thanks!

 

LEGAL DISCLAIMER: Please understand that the complexities of most legal problems cannot be adequately addressed in this setting, and that I am only licensed to practice law in the state of Oklahoma. Accordingly, you acknowledge (1) that we have not formed an attorney-client relationship, and (2) that my posted reply is general information only that is relevant to your situation and is not specific legal advice. The answers given are limited to the information you have provided in your post and therefore cannot be comprehensive. For specific legal advice, please consult with an attorney who has been licensed to practice in your state.

Paul, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 100
Experience: Juris Doctor from UTulsa. Practicing attorney in Oklahoma. Experience as a criminal prosecutor.
Paul and 7 other Criminal Law Specialists are ready to help you
Expert:  Paul replied 5 years ago.
Since my first posting I have found a GREAT article on this very subject. Here is the link, it is the first article and then is continued on page 9:

http://www.tmcec.com/tmcec/public/files/File/The%20Recorder/2003/mar03recorder.pdf
Paul, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 100
Experience: Juris Doctor from UTulsa. Practicing attorney in Oklahoma. Experience as a criminal prosecutor.
Paul and 7 other Criminal Law Specialists are ready to help you

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