Skip to Content

2018 Summer Newsletter

July 31, 2018

Click the title below to read the article.


Summer Welcome

Greetings! TJCTC is completing this education year on a high (and a hot!) note. We worked hard to enhance our resources, elevate our courses, and highlight important issues. This year, the legal department put significant effort into recreating the Deskbooks. We now have 7 new books built by topic. You can expect the next 2 – juvenile law and fines & costs – to be out within a month. Our attorneys did all this while answering thousands of board question and phone calls.

It is important to remain aware of recent changes in the law. TJCTC made sure to address the new indigency laws in general sessions with the judges and their staff. We are so proud of how quickly and correctly you have not only implemented the new indigency laws, but already put good practices into place in your courts.

Court Security Training is now being offered for those many Constables who serve their court as bailiff. We look forward to providing multiple training events across the sate this next year.

Finally, concern for the mentally ill in our court system is an area that we all take seriously. TJCTC continues to work with stakeholders to make sure we can provide the most current information to you on this issue. This education year, we will be providing a general session on mental health issues in the court system for all of our programs. We will continue to offer mental health courses at our regional JPCA workshops, as well.

Please know our door is always open for suggestion and we look forward to seeing you all soon!

Thea


Recent Attorney General Opinions: Mental Health Transport Issues and Designating a Bailiff

By Bronson Tucker, Director of Curriculum

Attorney General Ken Paxton has issued two opinions recently that affect the authority of a Justice of the Peace. We examine these opinions below and discuss their practical impact.

Designating a Specific Peace Officer or Law Enforcement Agency to Execute Emergency Detention Warrants

On May 16, 2018, Opinion KP-0206 addressed which peace officers or agencies may be ordered to transport persons subject to an emergency mental health detention warrant under Sec. 573.012(d) of the Health & Safety Code.

Background

Transportation of individuals who are subject to a mental health detention warrant has become a point of controversy. Who, if anyone, is the responsible peace officer or law enforcement agency? These disputes often center on the issue of jurisdiction, and whether or not the person to be transported happens to be in a municipality or not.

Question 1 – Does a magistrate have authority to require a specific law enforcement agency to execute a warrant?

Sec. 573.012 of the Health & Safety Code states that the magistrate shall direct a warrant to an on-duty peace officer for immediate apprehension. AG Paxton noted that in a previous opinion (JC-0387 (2001) no distinction was made between various types of peace officers. Therefore, any peace officer or agency can be designated to apprehend and transport the individual, regardless of where the individual is found within the county. This means that a magistrate may order a city peace officer or police department to apprehend and transport someone not currently located in the city which they serve.

Question 2 – Must the responding officer/agency “respond and transport the person?”

Yes. Sec. 573.012(e) says that “a person apprehended under this section shall be transported…” but doesn’t explicitly state who must do the transporting. AG Paxton points to caselaw and the Administrative Code to back up the common sense finding that the officer/agency that apprehends the person is also responsible for transporting them to the nearest mental health facility for evaluation.

Question 3 – May an officer or agency refuse to transport an individual under an emergency mental health warrant?

No. Code of Criminal Procedure Art. 2.13 says that a peace officer “shall execute all lawful process issued to the officer by a magistrate or court.” Sec. 573.012 says that a person apprehended “shall be transported” to the nearest mental health facility. As the AG points out, the word “shall” imposes a duty, and not something left to the discretion of the officer or agency.

Question 4 – Can an officer or head of an agency be held in contempt for refusal to transport?

Yes. Of course, contempt should be a last resort. Hopefully, this opinion and some discussion among the various stakeholders will result in an action plan that is workable for all involved. That said, Art. 2.16 of the Code of Criminal Procedure makes it clear that a sheriff or other officer who refuses to execute process may be held in contempt. But who can hold them in contempt?

In the opinion, AG Paxton specifically states that courts with mental health jurisdiction under Chapter 573 of the Health & Safety Code would be able to initiate contempt proceedings. These courts are the local probate court or court with probate jurisdiction; in other words, not the Justice of the Peace. AG Paxton doesn’t address the issue of whether or not the magistrate could hold the officer/agency in contempt, focusing the opinion on a court’s power to hold the officer/agency in contempt.

While the opinion doesn’t explicitly state that a magistrate may not hold the officer in contempt for refusal, the safest course of action would be (assuming that other measures have already failed to resolve the problem) for contempt proceedings to be initiated with the court having mental health jurisdiction.

Summary

A magistrate may designate a specific officer or law enforcement agency to execute an emergency mental health warrant. This designation conveys a duty on that officer or agency, without regard to geographic limitation, to apprehend and transport the subject of the warrant to the nearest mental health facility. An officer may not refuse this duty, and may be held in contempt by a judge with mental health jurisdiction for refusal.

Designating a Bailiff/Warrant Officer

On May 16, 2018, Attorney General Paxton released Opinion KP-0201 concerning the authority of a Justice of the Peace to hire and supervise employees, specifically a bailiff-and-warrant officer.

Background

In this situation, a pair of JPs (who were in different places in the same precinct) wanted to hire officers who would perform bailiff duties and warrant enforcement services. They came to an agreement with the constable from another precinct in the county for that constable to provide the law enforcement training necessary for the employee to be a certified peace officer.

Question 1 – Can a JP hire and directly supervise a bailiff/warrant officer?

No statute or rule explicitly defines a bailiff for justice courts or provides one for them. Chapter 53 of the Local Government Code governs bailiffs, but only for specific county and district courts. Section 86.021 of the Local Government Code states that the constable shall “attend” each justice court held in the precinct. In many counties, while attending justice court, the constable performs the duties of bailiff.

Under Government Code Sec. 27.056, a Justice of the Peace may designate someone as the clerk of the court to assist with tasks including “assist[ing] the judge with matters before the court.” Theoretically, a “clerk” could perform some of the functions of a traditional bailiff. Additionally, Sec. 151.001 of the Local Government Code provides that a precinct officer (such as a Justice of the Peace) may request the commissioners court of their county to authorize the appointment of “deputies, assistants, or clerks” to assist in the fulfillment of duties. In a county of over 190,000, a request may be made for authority to appoint “any other kind of employee.”

It is clear that a JP may designate someone as a clerk to perform some of the functions described by a bailiff officer, that a JP may seek approval from the commissioners court for an assistant to perform these functions in counties of 190,000 or less, and that a JP may seek approval from the commissioners court for a bailiff or warrant officer in a county of over 190,000 people.

Question 2 – Can a JP employee be commissioned as a Texas peace officer?

The next issue is whether or not an employee of a Justice of the Peace can be commissioned as a Texas peace officer. Several of the tasks that were to be performed by the bailiff/warrant officer in this situation were tasks that should be performed by a peace officer.

Art. 2.12 of the Code of Criminal Procedure and Sec. 1701.001(4) of the Occupations Code define a peace officer. A person must both be certified by TCOLE (Texas Commission on Law Enforcement) and utilized in a capacity designated by statute. Employee of a justice court is not one of those capacities, so they cannot be a peace officer simply by virtue of TCOLE certification and employment by the justice court alone. AG Paxton mentions that they may be able to be a peace officer under some other qualification listed in Art. 2.12. It is worth considering whether the hiring of an active peace officer would create ethical conflicts for a justice court.

Question 3 – Can a constable “carry the commission” of an employee of a JP in a different precinct?

Since a justice court employee is not designated as a peace officer (and may raise ethical implications), a logical follow-up would be, could the constable designate the justice court employee as a peace officer, thus allowing them to be a peace officer with TCOLE certification?

The constable has no authority to simply designate someone as a peace officer under the statutes described above. A constable can apply to the commissioners court for a deputy constable under Local Government Code Sec. 86.011(a), and a deputy constable is listed as a peace officer under Art. 2.12. A constable seeking to employ a deputy constable, however, must "show that it is necessary to appoint a deputy in order to properly handle the business of the constable's office that originates in the constable's precinct." A commissioners court may approve the appointment of a deputy constable "only if the commissioners court determines that the constable needs a deputy to handle the business originating in the precinct." This very likely means that a constable from one precinct would be unable to employ a deputy whose primary function is bailiffing and serving warrants for another precinct. AG Paxton didn’t address the question of whether a deputy constable could properly perform those functions in their home precinct, but it logically follows that they could.

Summary

A Justice of the Peace can designate a clerk to assist with matters before the court. This could include some tasks traditionally assigned to bailiffs, such as calling individuals into the courtroom and assisting with exhibits, etc. A Justice of the Peace can request another employee from the commissioners court, which the commissioners can approve or deny. If a peace officer is desired as a bailiff, they must meet the requirements of Art. 2.12 of the Code of Criminal Procedure. A constable may request a deputy constable, but only to assist on matters within the constable’s precinct.


The Protecting Tenants at Foreclosure Act is Back...For Good

By Randall Sarosdy, General Counsel

On June 23, 2018, the Permanently Protecting Tenants at Foreclosure Act of 2018 went into effect. The Act restores and revives the Protecting Tenants at Foreclosure Act of 2009 as if it had not expired on December 31, 2014.

What Does This Mean?

Often, when there is a foreclosure of a rental property, the tenant – who is paying rent – does not know that the landlord is in foreclosure on the property.

The Protecting Tenants at Foreclosure Act protects tenants from eviction because of a foreclosure on the property they occupy.

For example, if John Smith is renting a house and the owner of the house fails to make his mortgage payments and the bank forecloses, John is protected from being evicted immediately (provided of course he continues to pay his rent and is not otherwise in breach of his lease).

How Much Time After a Foreclosure Does a Tenant Get?

The tenant may remain in the house until the end of his lease term if he has a lease for a fixed term and the person who acquires the house at the foreclosure sale is not going to use it as their primary residence.

For example, suppose John Smith has a written lease that goes from January 1, 2019 until December 31, 2019, and the foreclosure sale occurs in March 2019. John can remain in the house until the end of his lease term on December 31, 2019, unless the person who acquires the house at the foreclosure sale is going to use the house as their primary residence. In that case the new owner of the house may give John (the tenant) a 90-day notice to vacate, and he must leave when the 90 days is up. If he doesn’t leave, then the new owner could file an eviction suit just as in any other situation where a tenant fails to leave following a notice to vacate.

What if the Lease is Terminable at Will?

If the lease is terminable at will under state law, then the tenant is entitled to a 90-day notice to vacate.

For example, suppose Jane Jones rents a house for $800 per month but there is no agreement as to how many months she may stay there. This is a tenancy at will because either party may terminate the lease by notifying the other party that they are terminating. See the Evictions Deskbook at pages 5 – 6.

If the owner of the house defaults on his mortgage and the bank forecloses on the mortgage, then the new owner who buys the house at the foreclosure sale would have to give Jane a 90-day notice to vacate before filing an eviction suit.

What Foreclosures Are Covered?

The tenant protection provisions apply in the case of any foreclosure on a “federally related mortgage loan” (such as an FHA or VA mortgage) or on any dwelling or residential real property.

Who Has to Give the Notice to Vacate and When?

Any “immediate successor in interest” in a foreclosed property, including a bank that takes title to a house upon foreclosure or an individual who purchases the house at the foreclosure sale, assumes the interest subject to the rights of any “bona fide” tenant and must provide the tenant with a notice to vacate at least 90 days before the effective date of the notice.

The notice to vacate may not be given before the date on which complete title to a property is transferred to a successor entity or a person as a result of a court order or pursuant to provisions in a mortgage, deed of trust, or security deed.

For example, if a bank has issued a notice of foreclosure to the owner/landlord and expects the foreclosure to occur in 60 days, the bank may not issue the notice to vacate to the tenant 60 days before the foreclosure occurs and then give the tenant 30 days after the bank becomes the owner. The bank must wait until complete title to the property has been transferred to it and then it must issue at least a 90-day notice to vacate.

Does the Act Apply to All Tenants?

It applies to all “bona fide” tenants. A lease or tenancy is considered “bona fide” only if:

  • The mortgagor (that is the owner of the property who signed the mortgage that is being foreclosed on) or the child, spouse or parent of the mortgagor, is not the tenant;

 

  • The lease or tenancy was the result of an arms-length transaction (meaning they are acting independently and in their own self-interest); and

 

  • The lease or tenancy requires the receipt of rent that is not substantially less than fair market value for the property.

For example, suppose the owner of a house who defaults on their mortgage has rented the house to their adult children. The children are not “bona fide” tenants and therefore they are not entitled to protection under the Act (that is, they are not entitled to at least a 90-day notice to vacate).

Where Can I Find More Information about the Act?

The Comptroller’s Handbook explaining the Protecting Tenant’s at Foreclosure Act of 2009 may be viewed at this link:

https://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/protecting-tenants-foreclosure/pub-ch-protecting-tenants-foreclosure-act-2009.pdf

Please see this article for further information:

http://nlihc.org/article/congress-permanently-authorizes-protecting-tenants-foreclosure-act

The full text of the 2018 Act may be found at this link:

https://www.congress.gov/115/bills/s325/BILLS-115s325is.pdf

Please see the Evictions Deskbook at pages 4 – 11 concerning types of tenants and eviction scenarios, available at this link: http://www.tjctc.org/tjctc-resources/Deskbooks.html

July 2014 Newsletter, “The Ins and Outs of Proper Notice in Eviction Cases,” at this link: http://www.tjctc.org/tjctc-resources/publications.html#newsletters


Coming Soon: 2018 Civil Process Field Guide

By Camille Reasor, Staff Attorney

You’ve probably noticed, and hopefully used all of the new Deskbooks that have been posted on the TJCTC website. TJCTC is excited to announce that coming September 1, 2018, a new Civil Process Field Guide will be joining the ranks.

This guide is geared towards constables, their deputies, and anyone else who serves civil process in Texas, and is intended to be a resource that can be utilized in the field when an officer is serving process and a question arises. The guide identifies the main writs and process that get served, sets out the requirements for each, describes proper service, and elaborates the service and return duties of the officer.

Check the TJCTC website under the resources tab on September 1st to download your copy of the Civil Process Field Guide!


Interlock Data Utilization

The National Highway Traffic Safety Initiative

Driving-while-impaired (DWI) offenders present a high risk to traffic safety. Alcohol ignition interlocks are now widely used for DWI offenders and can significantly reduce DWI recidivism while on the offender's vehicle. In the below article, the National Highway Traffic Safety Administration outlines a descriptive study that explores ignition interlock data.

Click here to read the full article.


Contributions to the Newsletter

We need your help! We have several newsletter articles coming up in the next year that need information from JP and Constable offices. Can you help us?

Judges and Court Personnel

Future article: Community Service options

Do you have a creative community service option you use in your court? Let us know about it.

Constables and Deputy Constables

Do you use travel printers in your cars? Would you recommend this option to other offices? Let us know how travel printers have helped you serve civil process.

Please email all contributions to Jessica at jessforeman@txstate.edu.