Texas Criminal Procedures - PP

Report
Texas Criminal Procedure and Public
Schools
What Subchapter E-1 of Chapter 37 of the
Education Code Means to Law
Enforcement
Ryan Kellus Turner
General Counsel & Director of Education
Texas Municipal Courts Education Center
Rethinking School Discipline Policies
Region One Education Service Center
December 10, 2014
By the end of this presentation, participants will be able
to:
1. Describe how “passing the paddle” prompted
legislative changes in 2013;
2. Explain the application of Subchapter E-1 of
Chapter 37 of the Education Code;
3. Describe how the charging requirements for
Subchapter E-1 of Chapter 37 of the Education
Code vary from other Class C misdemeanors;
4. Identify ways that cases can be diverted from court
without formal adjudication; and,
ORGINS
(WHY THE LAW CHANGED)
 A Euphemism Used to
Described the Transfer
of Discipline of School
Age Children (Ages 1016) from Texas Public
Schools to Texas
Criminal Courts (i.e.,
Municipal and Justice
Courts)
Juvenile Court (Civil)
 Right to Appointed
Counsel
 Statutory Diversion
from Court /
 Prosecutor Review
 No Fines
 Records
Confidential
Municipal and Justice Courts
(Criminal)
 No Right to Appointed




Counsel
No Diversions (Child
Must Appear in Open
Court)
No Prosecutor Review
Fines and Court Costs
Conditional
Confidentiality
Is there a Difference Between the
“School to Prison Pipeline” and the
“School to Court Pipeline”?
156,263
29,370
Class C
Delinquent
Misdemeanor Conduct
887
CINS
EXCLUDING:
Juvenile Traffic – 118,037 Cases
DUI of Alcohol - 2,185 Cases
ALL JP JUVENILES FILINGS!!!!!!!!!
226
Cert. Felony
Criminal
Civil
2,400
2,200
2,000
1,800
1,600
Axis Title
1,400
1,200
Total Adjudicated CINS
1,000
800
600
400
200
0
2006
2007
2008
2009
2010
Axis Title
2011
2012
2013
1. Stop Outsourcing
School Discipline
to Courts.
2. Reduces Related
Costs Being
Imposed on Local
Governments, Tax
Payers, Children,
and their Families
3. Be“Smart on
Crime” while
Keeping Texas
Public Schools Safe.
4. Provide Pros. &
Judges Info & Tools
Essential for the Fair
Administration of
Justice.
SB 393
SB 1114
The Charts:
1. Comparison of Former Law to
Current S.B. 393 and Other Bills
From the 83 rd Regular Legislature
2. OCA School Offenses (Revised)
Getting to Know Subchapter E-1 of
Chapter 37 of the Education Code:
Criminal Procedure
In this subchapter:
(1) "Child" has the meaning assigned by Article
45.058(h), Code of Criminal Procedure, except that
the person must also be a student.
(2) "School offense" means an offense committed
by a child enrolled in a public school that is a Class
C misdemeanor other than a traffic offense and that
is committed on property under the control and
jurisdiction of a school district.
Getting to Know
Subchapter E-1 of Chapter 37 of the
Education Code:
Criminal Procedure
CHARGING
To the extent of any conflict, this subchapter
controls over any other law applied to a school
offense alleged to have been committed by a
child.
(a) A peace officer may not issue a citation
to a child who is alleged to have
committed a school offense.
(b) This subchapter does not prohibit a
child from being taken into custody under
Section 52.01, Family Code.
1. “School Officers can No Longer Issue on
Campus-Citations” headline Texas Tribune,
August 29, 2013
2. E-1 prohibits children from being charged with
non-traffic Class C misdemeanors in criminal
court
3. E-1 prohibits a peace officer from taking a child
who is a student at a public school into
custody pursuant to the law of arrest and
initiating juvenile proceedings against the child
under Title 3 of the Family Code
4. E-1 prohibits a peace officer from taking a
child who is a student at a public school
into custody pursuant to the law of arrest
and initiating criminal proceedings in court
5. E-1 does not prohibit a 17 or 18 year old
public school student from being issued a
citation for a Class C misdemeanor on
school grounds
(a) A complaint alleging the
commission of a school offense must,
in addition to the requirements
imposed by Article 45.019, Code of
Criminal Procedure:
(1) be sworn to by a person who
has personal knowledge of the
underlying facts giving rise to
probable cause to believe that an
offense has been committed; and
(2) be accompanied by a statement
from a school employee stating:
(A) whether the child is eligible
for or receives special services under
Subchapter A, Chapter 29; and
(B) the graduated sanctions, if
required under Section 37.144, that
were imposed on the child before
the complaint was filed.
In other words: A complaint
must:
(a) Comply with Art. 45.019,
CCP
(1) PLUS – Have a Personal
Knowledge Affiant
(2)(A) PLUS – Have a
Special Education
Declaration
(2)(B) PLUS – And MAY
require a Graduated
Sanctions Declaration (If
Applicable) (If Required)
 Generally, complaints alleging Class C misdemeanors DO
NOT have to be sworn to by individuals with personal
knowledge. Naff v. State, 946 S.W.2d 529 (Tex. App. Fort Worth
1997); Martin v. State, 13 S.W.3d 133 (Tex. App. Dallas 2000)
1. Can a school peace officer swear to a complaint for a
teacher who observed an offense in her classroom?
2. What if there are no witnesses to a criminal mischief at
school? Only a peace officer’s investigation.
3. Who can administer the oath for the complaint? Can
the peace officer administer the oath to a school
employee or student who has personal knowledge.
4. What if a student is assaulted at school and tells his
parents. The parent comes to court wanting to file a
complaint. Does Sec. 37.146(a)(1) apply?
1. Are they a mandatory component in an E-1 complaint
regardless of the offense?
2. Do they apply if my public schools only have a school
resource officer (i.e., my public school district does not
employ its own school district peace officers)?
3. Does the graduated sanctions requirement in the E-1
complaint process apply if my ISD commissions its own
peace officers?
1. The Individual Disability Education Act
2. Manifestation of Disability as Limitation on
School to Imposed Punishment
3. Relevance to Prosecutors and Judges in Terms
of Determining Culpability and
Blameworthiness
(b) After a complaint has been filed under this
subchapter, a summons may be issued under
Articles 23.04 and 45.057(e), Code of Criminal
Procedure.
An attorney representing the state in a court
with jurisdiction may adopt rules pertaining to
the filing of a complaint under this subchapter
that the state considers necessary in order to:
(1) determine whether there is probable cause
to believe that the child committed the alleged
offense;
(2) review the circumstances and allegations in
the complaint for legal sufficiency; and
(3) see that justice is done.
1. Can an E-1 case result in a summons without
a prosecutor’s motion?
2. What is the judge’s roll in the summons's
process?
3. “My city is not willing to pay for our city
attorney to review complaints.”
DIVERSIONS
1. Disposition Without Referral (Sec. 52.03, Family
Code)
 Permissive expansion to include non-traffic Class C
misdemeanors
2. First Offender Program (Section 52.031, Family
Code)
 Permissive expansion to include non-traffic Class C
misdemeanors
3.
School District Peace Officers are Authorized After
taking a Child into Custody to Dispose of Cases in
Accord with Sec. 52.03 and Sec. 52.031, Family Code
4. Permissive Expansion is Contingent on Approval by
the Juvenile Board of each County
1. Juvenile Case Managers (Art. 45.056)
• Expanded to Provide Prevention Services for
“At Risk Youth” (Art. 45.056(c)(1)(A))
• Intervention Services for Misconduct Prior to
Cases Being Filed (Art. 45.056(c)(1)(B))
• Priority for JCM services shall be given to
matters “brought under” laws relating to
failure to attend school and parent
contributing to non-attendance (Art.
45.056(e)) (S.B. 209 from 2011 back from the
dead?)
Thank
You
For Your
Attention
E—MAIL: [email protected]
TWITTER: @RKELLUSTURNER

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