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  1. #1
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    Default Municipal Ordinance vs. Case Law

    City of Tyler, Texas Muncipal Ordinances
    Sec. 17-32. Applicability of traffic regulations; must be obeyed.

    d. In any prosecution for violation of this chapter, the authorized installation of a traffic control device or signal shall be presumed.

    >>>This appears to be in conflict with state law. Specifically, SOILEAU V. STATE.(244 SOUTH WESTERN REPORTER, 2d SERIES pages 224--226.) Judge Morrison on page 226 quotes Judge Hutcheson, in United States v. Rembert, D.C., 284 F. 996, 1001, "...it is not essential that, in making an arrest without warrant. the officer must absolutely know that an offense is being committed; he must believe it is being committed, and must believe upon the evidence of his own senses in the case of a misdemeanor, and in the case of a felony upon credible evidence of other persons." Judge Morrison then goes on to state: "However, a prosecution for failure to heed a traffic control device must have as an integral element thereof proof that the traffic control device was legally there. An officer may in certain cases make a legal arrest on probable cause, yet the arrested party cannot be convicted on probable cause alone."<<<


    Under the TEXAS PENAL CODE CHAPTER 2. BURDEN OF PROOF
    § 2.01. PROOF BEYOND A REASONABLE DOUBT
    All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.

    Given that each element of the offense must be proven beyond a reasonable doubt, and SOILEAU clearly states "...a prosecution for failure to heed a traffic control device must have as an integral element thereof proof that the traffic control device was legally there." then I cannot see how Section 17-32 is not invaladated by SOILEAU.

    Comments please...

  2. #2
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    Default Presumptions

    First, if the ordinance violation is for a civil infraction, a lower standard applies than for criminal cases.

    Second, even within the context of criminal cases, subject to statutory and constitutional limitations certain presumptions can exist and can be enforced. The defendant can still challenge the presumed fact, by presenting evidence which contradicts the presumption.

    Quote Quoting Texas Penal Code § 2.05. Presumption.
    When this code or another penal law establishes a presumption with respect to any fact, it has the following consequences:

    (1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and

    (2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows:
    • (A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;

      (B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;

      (C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and

      (D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.

  3. #3
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    Default Proof vs. Presumption

    In SOILEAU the TX CCA categorically rules that the legitimacy of of a traffic control device is an essential element of a case of failure to heed a traffic control device. The Texas Penal Code categorically states that each element of an offense must be PBARD. The TX CCA ruling, combined with § 2.01 of the Penal Code makes clear that the prosecution must prove beyond a reasonable doubt the legitimacy of the traffic control device in question. Therefore, the burden of proof with the regard to the legitimacy of the device is borne by the prosecution, and not the defense. The presumption that the physical existence of a TCD makes the TCD official is contradicted by the TX CCA ruling, via Judge Morrison's statement "An officer may in certain cases make a legal arrest on probable cause, yet the arrested party cannot be convicted on probable cause alone." This statement with in the context of the ruling clearly indicates that the mere physical presents of a TCD only constitutes probable cause, and thus fails to meet the PBRAD standard needed in a prosecution. Thus, the a mere statement in a municipal ordinance that there is a presumption of legitimacy via physical existence is contrary to the the CCAs determination that physical existence only constitutes probable cause.

  4. #4
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    Default

    Again, the issue is not what criminal law holds, as this is apparently a civil infraction. And is is beyond obvious from the penal statute quoted above that, as limited by that statute, presumptions are permitted even in Texas criminal prosecutions.

  5. #5
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    Default

    No sir, I can categorically state that it is a case of criminal law and not civil law. Unless, the failure to head a TCD is an instance of a parking violation (i.e. a non-moving violation) the failure to head a TCD is a class C misdemeanor, and thus is a criminal prosecution.

    I've not posted the whole of the SOILEAU decision by the TX CCA. In it is clear that the failure to head a TCD in SOILEAU is treated as a misdemeanor.

    The point here is that §2.01 of the penal code provides that no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.

    Note that §2.01 denies premision to convict via no person may be convicted of an offense unless phrase.

    The word 'unless' denotes the allowable condition wherein a conviction may be obtained, and is followed by a statement of the condition/s. There condition is: each element of an offence is PBARD.

    The PBARD standard precludes that an element of an offence may be deemed to be presumed, as such a presumption falls short of the PBARD standard.

  6. #6
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    Default

    It is about time you got around to detailing the nature of your ordinance violation.

    If you believe the Texas statute to be unconstitutional, raise that issue with the court.

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