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If my last name was “Crook,” I would definitely go out of my way to make sure that I didn’t get in trouble with the law, especially with respect to crimes involving dishonesty. That apparently didn’t stop a man by the name of James Crook from being tried and convicted of 13 counts of barratry, which is a 3rd degree felony. The jury in that case assessed Mr. Crook’s punishment to be 10 years confinement for each count of barratry with a recommendation that he receive probation in lieu of actual jail time. The jury also assessed $130,000.00 in fines ($10,000.00 for each count) with no recommendation for probation on the fine. The trial court ordered Mr. Crook to serve 7 years probation for each count and ordered these periods to run concurrently. The trial court, over the state’s objection, also ordered Mr. Crooks’ fines to run concurrently. Thus, instead of Mr. Crook owing $130,000.00 in fines, he would only owe $10,000.00.

The state argued on appeal that the trial court’s decision with respect to the fines was inconsistent with over 100 years of Texas case law which allowed fines to run consecutively even when the terms of confinement run concurrently. The Texas Court of Criminal Appeals disagreed, citing section 3.03(a) of the Texas Penal Code (“TPC”), which states:

The court held that the more recent enactment of this section by the Texas legislature superseded the prior case law cited by the state.

Since State v. James Crook was issued, there has been some disagreement and confusion over its applicability to the prosecution of multiple Class C misdemeanors. The Texas Municipal League has published an article entitled “Criminal Court Case Could Affect Municipal Fine Revenue,” which interprets Crook to mean that all fines for multiple offenses tried in the same trial must run concurrently. Thus, according to TML, if a defendant is tried for speeding and a seatbelt violation in the same trial, the fines must run concurrently and the defendant would only be liable for the greater of the two fines if convicted.

Ryan Turner, General Counsel to the Texas Municipal Courts Education Center, has issued a different opinion. Turner believes that Crook does not take into account the differences between the procedural aspects of felonies and Class C misdemeanors. Turner points out that in Crook, there was one charging instrument (an indictment) which alleged 13 counts of felonious conduct. Class C misdemeanors, on the other hand, are typically prosecuted by the filing of a single complaint for each offense. Turner concedes, however, that Crook would have to be followed “in the rarest of cases where a single complaint contains multiple counts alleging that each count is part of a continuing ‘criminal episode’ as defined in Sec. 3.01, Penal Code.” Otherwise, Turner argues that as long as each offense is listed in a separate complaint, the fines for those offenses may run consecutively even if all of the complaints are joined together in one trial.

Turner’s criticism of TML’s position is not without merit. Crook simply did not address the prosecution of multiple Class C misdemeanors and therefore did not take into account the procedural aspects unique to such prosecution or the legislature’s intent with respect to such prosecution. However, Turner’s argument is also somewhat flawed in that Chapter 3 of the TPC (entitled “Multiple Prosecutions”) does not draw any distinction between the prosecution of felonies and the prosecution of misdemeanors. Chapter 3 only addresses the prosecution of multiple criminal “offenses.”

The answer to this prosecutorial dilemma in my opinion lies in the language of Chapter 3 itself. Section 3.02(a) of the TPC states that “[a] defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.” Section 3.01 of the TPC defines “criminal episode” to mean “the commission of two or more offenses…under the following circumstances: (1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or (2) the offenses are the repeated commission of the same or similar offense.”

Whether the offenses arise from the same criminal episodes or from different criminal episodes will vary with the facts of each case. In Crook, the defendant was convicted of 13 counts of barratry. Therefore, the defendant’s actions arose from the same criminal episode because the offenses were “the repeated commission of the same or similar offense.” An analogous situation in the context of the prosecution of Class C misdemeanors might be the situation where a defendant is accused of multiple violations of a city’s ordinance. Usually, the cities’ ordinances are drafted in such a way to punish the same conduct (e.g., the failure to mow grass) and to declare such conduct to be a separate “offense” for each day that the violation continues. If the prosecutor were to elect to try each separate offense in one trial and if the defendant were found guilty of more than one offense, then, according to section 3.03(a) of the TPC, the defendant’s sentence (including the fine) must run concurrently.

It is much more difficult to determine whether a defendant’s conduct arises from the same “criminal episode” when, as is more often the case, a defendant is cited for multiple offenses of separate provisions of the Texas Transportation Code (e.g., speeding, failing to wear a seatbelt, failing to signal, etc.). Are these multiple offenses “transactions that are connected or constitute a common scheme or plan” or are they truly separate offenses without any connection? If the offenses are connected, the prosecutor may join them in one trial pursuant to 3.02(a) of the TPC. However, doing so will result in the fines running concurrently in accordance with section 3.03(a) of the TPC (and with Crook).

The real question not addressed by Crook is whether separate offenses which do not arise out of the same criminal episode may be joined in one trial such that the fines for each offense will run consecutively. I believe the answer to this question is: No, unless the defendant agrees to waive both his right sever the offenses under section 3.04 of the TPC and his right to concurrent sentences under section 3.03(a) of the TPC. Section 3.02(a) of the TPC only allows for the consolidation of offenses in one trial if such offenses arise out of the same criminal episode. In other words, separate offenses arising from separate criminal episodes must be tried separately. This is only fair because as a matter of public policy we do not want a jury convicting a defendant for one offense based on the alleged wrongfulness of the defendant’s conduct in separate and unrelated matters.

The court in Crook noted that in order to balance the need to provide prosecutors with the ability to clear crowded dockets and to save tax-payer money by disposing of multiple crimes in one trial, a compromise was struck to give prosecutors the right to consolidate multiple offenses arising from the same criminal episode into a single trial and to give defendants the right to concurrent sentences under such circumstances. The defendant’s right to concurrent sentences, like the defendant’s right to sever multiple offenses into separate trials, may be waived by the defendant. Therefore, if the defendant is charged with multiple offenses arising from the same criminal episode and the prosecutor desires to join those offenses into one trial and to have the sentences for those offenses run consecutively, then the prosecutor must get the defendant to agree to waive the right to sever and the right to concurrent sentences, preferably on the record. Otherwise, the prosecutor must prosecute the offenses in separate trials.

* Subsection (b) describes exceptions that do not apply to the prosecution of Class C misdemeanors.