Traffic Ticket Due Process

San Jacinto Constitutional Study Group

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Traffic Ticket Due Process

When we think of due process, most people think of their day in court, but lets look at a definition of :

Due process – ‘A term of US law which refers to fundamental procedural legal safeguards of which every citizen has an absolute right when a state or court purports to take a decision that could affect any right of that citizen. The most basic right protected under the due process doctrine is the right to be given notice, and an opportunity to be heard. The term is now also in use in other countries, again to refer to basic fundamental legal rights such as the right to be heard.’ (see DUHAIME'S LAW DICTIONARY)

Fundamental procedural legal safeguards is what due process is all about. It is our public servant’s procedure that must be followed, which guarantee your right to due process.

Many fundamental procedural legal safeguards can be found under Article I of the Texas Constitution and in the Bill of Rights found in the Constitution for the United States of America.

When you are stopped for a traffic violation, your fundamental procedural legal safeguards of due process should begin.

First things first; is the officer, that pulls you over, a defacto or dejure officer? A ‘dejure officer’ has fulfilled the requirements of office, where he has filed his Statement of Officer as required in Article 16, Section 1 of the Texas Constitution and he has accomplished all training required by law to safeguard the rights of the people. The ‘defacto officer’ is someone that hires in a police department or is deputized by some dejure officer, that has fulfilled his requirements to hold office. This defacto officer has been given the authority to deal with the public or third parties in certain situations. (See Walberg v. State, 73 Wis.2d 448, 463-64, 243 N.W.2d 190, 198 (1976)). A defacto officer could do things like crowd control or guard a building. But, when you are in your car, you are now separated from the public and you could not be a third party, when you are charged with doing the act itself. (See… Lincoln St., Inc. v. Town of Springfield, 615 A.2d 1028, 1031 (Vt. 1992) and See… Uhrig v. Regan, 623 F.Supp. 968, 971 (D. Md. 1985)).

Now, if the officer is a defacto officer, then there is a question of his authority to write the ticket and this should to be addressed. Authority to act is defiantly a due process issue. When you look in the Transportation Code, under Sec. 541.002(4), it states: ‘"Police officer" means an officer authorized to direct traffic or arrest persons who violate traffic regulations.’

Did you notice the word authorized? This shows that not just anybody can do what a police officer can do. You must be authorized.

OK, now you have an authorized dejure police office that just pulled you over for a traffic violation. So far so good. He comes up to your window and asks for your Driver License, proof of Financial Responsibility and he notices that your Safety Sticker and Registration is expired. You tell the nice officer that you don’t have a Driver License or proof of Financial Responsibility.

The nice officer now has 3 options. He could let you go and tell you to have a nice day; get his ticket book out and write you up, hand you the ticket and tell you to have a nice day; or put you under arrest and take you immediately to a magistrate. Lets take the option of being arrested and taken immediately to a magistrate.

First, in the Transportation Code, Section 543.002(a)(2), it states that the officer will take you to the magistrate only if you refuse to sign the ticket. So if you do not refuse to sign the ticket, the code does not authorize the police officer to take you away from the scene, except for being arrested for a hit and run. If he does take you to jail or to see a magistrate, when you did not refuse to sign the ticket, your procedural due process rights were possibly violated.

Lets say that you did refuse to sign the ticket and away you go. If the officer does not take you immediately to the magistrate then your procedural due process rights were possibly violated and possibly your civil rights. Being imprisoned for a debt, is not allowed under Article 1, Section 18 of the Texas Constitution. What I have found out, by using the Texas Public Information Request, the Houston Police Dept. has a policy for their officers to just fill out a form on anyone who refuses to sign the ticket. This is so the officers do not waste valuable ticket writing time and take you to the magistrate (my opinion).

The magistrate then has a hearing of probable cause for the Accused and allows the Accused to sign a promise to appear, so that the Accused may go on his way. If you do not sign the promise to appear, the gray area begins. If the magistrate threatens to put you in jail, for not signing the promise to appear and then he acts upon his threat, your procedural due process may have been violated under Article 15.17(b) of the Texas Code of Criminal Procedure (TCCrP).

Article 15.17(b) (TCCrP) states: ‘After an accused charged with a misdemeanor punishable by fine only is taken before a magistrate under Subsection (a) of this article and the magistrate has identified the accused with certainty, the magistrate may release the accused without bond and order the accused to appear at a later date for arraignment in the county court or statutory county court.’

Giving your name and birth date is usually considered as being identified. When you look for someone in jail, you need their name and birth date, to get anywhere. Remember, you cannot be charged with failure to identify, until you have been charged with a crime. (see KOLENDER v. LAWSON, 461 U.S. 352 (1983))

Don’t let the word ‘may’ fool you in Article 15.17(b). What other option would the magistrate have and not violation the Texas Constitution? This code states that your arraignment has to be at the county court or statutory county court (county criminal court or the county court at law), not at the Municipal or JP court. If they do have your arraignment at the Municipal or JP court, is this another violation of procedural due process?

Since the maximum penalty for a Class C misdemeanor is a fine only, the law does not authorize confinement, even if someone would not pay a bond or not sign a promise to appear. You would not believe how many people are put in jail over traffic tickets. The matter could be resolved easily by summons or subpoena, at the judge's bench, let the people go, then pick them up if they don’t appear, for contempt of court. But, that is just my opinion. But of course, I have not been able to find where a Municipal Court or Justice of the Peace Court has the authority to hold someone in contempt, since that is a jailable offense and each court has no jurisdiction concerning these issues. Maybe some JP or city judge could e-mail me the code, rule or regulation that allows them to put someone in jail for contempt. Being jailed for contempt, by a Municipal Judge or JP, may be possibly another violation of procedural due process and/or civil rights.

OK, now you signed the promise to appear and the judge lets you go without paying any funds. You notice that the ticket or promise to appear document informs you to appear on a certain day to a Municipal court or JP court (we discussed this problem).

The day finally arrives; you take off work and you show up early at the court room. You notice the room packed with people; with more coming in as the minutes tick by. Everyone you talk to is there for a traffic violation. The judge comes in and starts his speech informing the people how they can handle their case. The judge states that anyone that has just one ticket and elect to take a Driver’s Training class, to get rid of the ticket, will only have to pay a small court cost of $60 bucks or so. The next instruction from the judge is that you can plead guilty, not guilty or nolo contendere (latin for ‘I will not defend it.’), when your name is called. The people that plead guilty or nolo contendere usually get their fine reduced from 10 – 50%, because you fess up of being a criminal. The next instructions from the judge is, that anyone that plead ‘not guilty’, can ask for a jury trial or a bench trial (trial with judge only). Of course, the constitution guarantees a Trial By Jury and not a Jury Trial, but that is another story.

There you are trying to make up your mind what to do, but let's look at what the rules say.

Article 45.023 (TCCrP) states: ‘After the jury is impaneled, or after the defendant has waived trial by jury, the defendant may: (1) plead guilty or not guilty; (2) enter a plea of nolo contendere; or (3) enter the special plea of double jeopardy as described by Article 27.05’.

If the Judge makes you plea before the jury is impaneled or before you waive the jury, is this action a violation of your procedural due process? Article 45.024 (TCCrP) states that a judge can plead ‘not guilty’ for you, if you refuse to plea. The reason why you should not have to plea, until the jury is impaneled, is because you have nothing but a copy of the ticket to plea to. How could you plea to a charge when you have not seen the indictment, information or a copy of the complaint against you? Looks like you need some documentation, before you plea.

Article 45.018(b) (TCCrP) states: ‘A defendant is entitled to notice of a complaint against the defendant not later than the day before the date of any proceeding in the prosecution of the defendant under the complaint. The defendant may waive the right to notice granted by this subsection’.

Article 2.04 (TCCrP) states: ‘Upon complaint being made before a district or county attorney that an offense has been committed in his district or county, he shall reduce the complaint to writing and cause the same to be signed and sworn to by the complainant, and it shall be duly attested by said attorney’.

What if the complaint is not signed by the district or county attorney, is this a violation of your procedural due process?

If you do not receive a copy of the complaint before any proceeding, is that a violation of your procedural due process? What if the complaint charges you with something completely different than what the ticket stated? Couldn’t you point this out to the judge, to get it changed, before you plead to a charge completely different than the ticket indicated?

Article 1.14(b) (TCCrP) states: ‘If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding’.

Information is found in Article 2.05 (TCCrP) which states: ‘If the offense be a misdemeanor, the attorney shall forthwith prepare an information based upon such complaint and file the same in the court having jurisdiction;…’.

Article 25.04 (TCCrP) states: ‘In misdemeanors, it shall not be necessary before trial to furnish the accused with a copy of the indictment or information; but he or his counsel may demand a copy, which shall be given as early as possible.’

Why wouldn’t you ask for a copy of the information? There may be something wrong with the paperwork.

Article 12.02 (TCCrP) shows that there is a statute of limitation of when the information can be filed in court: ‘An indictment or information for any misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward’.

If you were to ask for a copy of the information and you do not get a copy before any hearing or at least before the Article 28.01 (TCCrP) Pre-Trial, would this be a violation of your procedural due process?

OK, you’ve got a copy of the complaint and a copy of the information, everything is in order, and you put in a Motion for a Pre-Trial for hearing of motions, as per Article 28.01 of the TCCrP. Here you question the attorney representing the State of Texas. In the Municipal Courts they use a city attorney. In the JP Courts they usually use an appointed assistant district attorney, where the same attorney does not show up for weeks or months and sometime never. The accused rarely sees the same attorney again from hearing to hearing.

Article 2.02 (TCCrP) states: ‘The county attorney shall attend the terms of court in his county below the grade of district court, and shall represent the State in all criminal cases under examination or prosecution in said county; and in the absence of the district attorney he shall represent the State alone and, when requested, shall aid the district attorney in the prosecution of any case in behalf of the State in the district court.  He shall represent the State in cases he has prosecuted which are appealed’.

Article V, Section 21 of the Texas Constitution states:  ‘…  The County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties; but if any county shall be included in a district in which there shall be a District Attorney, the respective duties of District Attorneys and County Attorneys shall in such counties be regulated by the Legislature. …’.

If the county attorney does not represent the State of Texas, in your trial, is this another violation of your procedural due process?

If the judge does not allow you to have a Pre-Trial, would that be a violation of your procedural due process?

After the Pre-Trial and the judge denies all your motions, discovery and anything else you can dream up, the Judge sets you for Jury Trial, unless you waive the right to a jury.

If you do not waive the jury, they bring in people for you to question to set on the jury. The rules say that you may dismiss three jurist and the prosecutor can dismiss three. We usually ask the jury to raise their hand, if they think you are not guilty. Most jurist will not raise their hands, which show they are prejudice against you. You are suppose to be innocent until proven guilty, right? The judge hates that and usually denies you the right to strike the whole jury. Is this a violation of your procedural due process?

OK, the jury is paneled and you try to inform the jury that they can judge the law as well as the fact of the case, but the judge screams to the jury that he, the judge, will tell the jury what the law is and that the jury will only judge the facts of the case. As recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an " unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.... (US vs Dougherty, 473 F 2d 1113, 1139 (1972)). The judge will not allow you to tell the jury this information. Is this a violation of your procedural due process?

Just think, if you were charged with ‘Eating Bananas on Tuesday’. Let's say that you were eating a banana on a Tuesday. The judge will only allow the jury to judge the facts presented to them, whether you did or did not eat a banana and whether you did this act on a Tuesday. Whether this law has anything to do with you, the judge will not allow the jury to decide this issue. Is this a violation of your procedural due process?

The police officer says you did it, you say you didn’t. Who are the jury going to believe? What happen to reasonable doubt? Oh, I know, a police officer would never lie.

OK, the jury finds you guilty of ‘Eating Bananas on Tuesday’, while in your car (you know, a traffic violation).

Now comes the judgment of the court for you to pay some fine, since the maximum allowed penalty is a fine only, for a Class C misdemeanor.

Article 42.15 (TCCrP) states that the judge can make you pay the fine and court cost.

Article 43.01 (TCCrP) states how you can determined when your fine has been fully paid.

The most interesting is Article 43.03 (TCCrP) which states: ‘A term of confinement for default in payment of fine or costs or both may not exceed the maximum term of confinement authorized for the offense for which the defendant was sentenced to pay the fine or costs or both.’

If you cannot pay the fine, the judge usually puts you in jail for so many days and gives you credit for time served. I think it is $50 a day, until the fine is paid. Article 43.03 indicates that you cannot be left in jail no longer that the maximum amount of days allowed for that type of violation. Now, if your violation does not include any jail time, what is the maximum amount of time, can the judge put you in jail for a $200 fine? Looks like none to me. If he does put you in jail for a Class C misdemeanor, has he violated your procedural due process and/or civil rights?

Now you put in a Motion for a new trial to the Judge. He denies that. Now you put in a Notice of Appeal and the clerk tells you that you need to put up double the fine, before you can appeal.

Problem is, we have not been able to fine where in the code, allows an appeal bond for a Class C misdemeanor. We have seen the bail bonds to keep you out of jail, but nothing was found where any jail time was not associated with the violation.

If they make you put up a cash or a surety bond, before you are allowed to appeal, is this a violation of your procedural due process?

Appeal Court violations of due process will have to be done at a later date. You have enough to study before we get to that.

Final thought to ponder. There cannot be any Rule, Policy, Custom, Ordinance, Law, Statute, Act, Resolution, Regulation or Treaty that can be passed to violate the fundamental procedural legal safeguards of which every Citizen has an absolute right, as specified in the Texas Constitution and the Constitution for the United States of America. We would have to do that ourselves, by passing an Amendment to the Constitution, removing these fundamental rights. Congress cannot allow the United Nations to take the rights of the people of Texas. Don’t let the media tell you different. Make them show their authority. It is not there.

Many people associated with the San Jacinto Constitutional Study Group are credited with discovering the information that is found here.

Article by: Bobie Kenneth Townsend

Member of the San Jacinto Constitutional Study Group (2013)

Conroe, Texas -  Chapter

ktownsend@gmail.com

All information found in this article will not be considered as legal advice. All Information should be verified by the reader. Permission to copy is granted. The truth should always spread.

Remember

The Unknowing Are Slaves To Liars

(Charles Barnham)