by Matt Clarke

The original 1836 Constitution of the Republic of Texas included a prohibition against imprisoning people who were unable to pay their debts. In the modern Texas Constitution, that concept is enshrined in the state’s Bill of Rights: “No person shall ever be imprisoned for debt.” Yet despite that clear mandate, Texas judges routinely jail people who are unable to pay fines for traffic citations and other minor offenses.

The U.S. Supreme Court has weighed in on this issue. In two separate, unanimous decisions, it held that incarcerating people too poor to pay fines violated the federal Constitution – unless, as was ruled in 1983, it could be demonstrated that a defendant “willfully refused” to pay. Ironically, one of the high court’s decisions involved a Texas case over unpaid traffic tickets, Tate v. Short, 401 U.S. 395 (1971).

Texas state law and an instruction manual for Texas judges declare that, before jailing a defendant for failure to pay fines, the court must first hold a hearing on the defendant’s ability to pay and, if he or she is financially unable, offer community service as an alternative. An indigent defendant is to be imprisoned only if the community service option is declined.

But many Texas judges act as if the constitutional provision, Supreme Court decisions and statutory requirement don’t exist. BuzzFeed News reviewed 100 cases where people were jailed for at least five days for failure to pay fines in El Paso, where 20% of the population lives below the poverty line. No one was offered a hearing on their financial ability to pay.

In 2014, El Paso city courts issued 87,000 arrest warrants for people who fell behind in fine payments, missed a court date or did not complete community service – more than one warrant for every eight residents in the city.

The money generated by those fines is significant. Traffic courts in Texas raked in about $1 billion in fines in 2014. In El Paso, which collected $11 million, they make up almost 4% of the city’s budget. Yet El Paso also spends about $375,000 each year to incarcerate those unable to pay court-ordered fines.

The problem is that many judges in low-level Texas courts don’t know or follow the law. University of Texas law professor Jennifer Laurin called those courts “the darkest corners of the criminal justice system.” Traffic courts, which handle Class C misdemeanors that are only punishable by fines, are not required to provide attorneys to indigent defendants.

BuzzFeed News reviewed case files in 20 El Paso misdemeanor courts and found no evidence that indigency hearings had ever been held in nine of the courts. When judges were interviewed about the lack of hearings they displayed remarkable ignorance of the law.

“There’s no requirement for us to ask defendants if they have money to pay,” said part-time El Paso judge Cheryl Davis. “Unless they bring up the fact that they have no money to pay, or that they would rather go on to a payment plan, or they want to do community service, then it’s not offered.”

“I’m not required by law to ask anything” about indigency, remarked Cindy Ruthart, a judge in Lamar County.

Daniel Robledo, the presiding judge of the El Paso City Court, agreed. Yet when shown the Texas statute that places the onus on judges to hold an indigency hearing for every defendant with unpaid fines, he said, “That’s a good point. That’s a very good point.”

Even when judges do hold indigency hearings as required by law, their rulings may not be reasonable. Some courts have held that homeless people are not considered indigent.

However, the same judges cut deals with wealthy defendants who have unpaid fines. For instance, successful businessman Charles Ackridge accumulated more than $80,000 in fines for driving on a tollway without an electronic pass about 6,000 times. He hired an attorney and cut a deal to pay only a quarter of the fines.

“We’re not a society that jails people for traffic tickets,” said Texas Fair Defense Project executive director Rebecca Bernhardt. “We’re a society that jails poor people for traffic tickets.”

Apparently our criminal justice system also jails poor people who are unable to pay debts to payday lenders, which, in Texas alone, have filed thousands of criminal complaints against their customers. The complaints typically allege theft-by-check and bad check writing.

According to the Texas Attorney General’s Office, which investigated the misuse of the criminal process by payday lenders, 42% of such cases resulted in arrest warrants being issued, and jail time or jail credit was applied in 5.6% of the cases. But the warrants were issued unlawfully.

Payday lenders typically make loans in exchange for a post-dated check that repays the loan, along with high interest and fees, after the customer’s next payday. The criminal complaints were for checks that bounced. But a law that took effect in 2012 exempts post-dated checks from bad check or theft-by-check charges unless the lender clearly establishes fraud. Lawful debt collection requires lenders to file suit in civil court to recover the debt.

In July 2015, the Consumer Financial Protection Bureau reached a $10 million settlement with ACE Cash Express, a Texas payday lender, for the use of “illegal debt collection tactics,” including threatening customers with criminal prosecution. Over 20 Texas cities have passed local ordinances regulating payday lenders.

Misuse of the court system to extract money from the poor, whether through fines or payday loan prosecutions, has by no means been limited to El Paso.

As reported by Texas Monthly and the Amarillo Globe-News in August 2016, the city of Amarillo has engaged in a practice of jailing indigent defendants, some of whom were disabled, for failure to pay municipal fines. And in May 2016, the Austin American-Statesman published the results of an investigation that found Austin city courts were locking up poor people unable to pay fines in traffic cases.

Also in May 2016, Houston Mayor Sylvester Turner issued the findings of a report that concluded the city had transformed its municipal courts into a “profit center.” Speaking to the U.S. Supreme Court’s 1983 caveat that defendants can only be jailed for “willful refusal” to pay fines, the report found that Houston city courts seldom offered alternative options – such as community service – before imprisoning poor defendants. For example, as stated by the report, of the nearly 170,000 convictions handed down by Houston municipal courts in 2014, only 2,800 people were offered community service in lieu of paying fines.

In November 2016, the ACLU of Texas filed a federal lawsuit against the 12,000-resident town of Santa Fe located in Galveston County. The suit alleges that the municipality, in an attempt to increase revenue, had deliberately raised fines levied by its municipal court and effectively turned the local jail into a “modern-day debtors’ prison.”

Yet there is some hope for reform on the horizon, such as in San Antonio. As reported by the Austin American-Statesman in May 2016, judges in San Antonio courts no longer jail people as a result of traffic citations; rather, they offer community service, grant credit for time served (if applicable) and waive fines for defendants who are unable to pay.

“Contrary to fears, there were no spikes in traffic crimes, and the city did not lose revenue,” San Antonio Judge John Bull said during an interview with the newspaper. Other cities and towns in Texas should take note and institute similar reforms. 

Sources: www.buzzfeed.com, www.ibtimes.com, www.texasmonthly.com, www.texasobserver.org, www.statesman.com

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