Judges shouldn’t require court costs up front in plea bargains

One of the stranger local practices in Kaufman County is the requirement of paying court costs up front in misdemeanor cases. That is, you are supposed to pay court costs on the day you plead guilty. This local preference is often a requirement to enter a plea, with some exceptions and variation among our County Courts. It’s the only county I practice in that has this policy and it’s one I’ve never understood.

I have not taken court appointments for a while, so it’s less of an issue for my clients who can usually get a few hundred bucks together on the date of the ple for costs. However, for indigent defendants paying $261-$460 at the time of plea can be impossible. Worse, indigent defendants have even gone to jail to “sit out” court costs if they did not bring them to court.

Recently Etta Mullins, widely regarded as the worst criminal judge in Dallas County when she was on the bench, was reprimanded by a special court of review for the same practice, inter alia. The opinion talks about (see Charge VI)  the role of the judge in accepting plea bargains and/or requiring costs or fines up front. Basically, it’s bad and you shouldn’t do it.

From the Etta Mullins Opinion-

“It is not the proper role of a judge to negotiate the terms of a plea bargain or personally supervise enforcement of collections. See Ex parte Williams, 704 S.W.2d 773, 777, n.6 (Tex. Crim. App. 1991) (holding a trial judge should not participate in plea discussions or negotiations); see also Ex parte Shuflin, 528 S.W.2d 610, 616-17 (Tex. Crim. App. 1975) (finding standards adopted by the American Bar Association (not adopted by this State) that a “trial judge should not participate in plea discussions” were adopted, in part, for the purpose of avoiding a violation of the Texas Code of Judicial Conduct to “avoid impropriety and the appearance of impropriety” in all activities, and to “neither initiate nor consider ex parte or private communications concerning a pending or impending proceeding.”).

Accordingly, we find from a preponderance of the evidence that the respondent’s practice of requiring certain defendants to make an upfront payment of fines and court costs before accepting a plea and entering judgment violated Canons 2A and 3B(2), and was inconsistent with the proper performance of her judicial duties in violation of Article V, section 1-a(6)A of the Texas Constitution.”

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