The Prosecutor, May-June 2011, Volume 41, No. 3

No free rides on Texas roads

How Williamson County prosecutors won a seven-minute guilty verdict for the first case against a defendant with thousands of toll violations

As of this spring, Charles Ackridge, the owner of a flooring company, had 1,946 unpaid tolls with the Texas Department of Transportation (TXDOT), which operates several toll roads in the state.
    How did one man rack up so many unpaid tolls?
    Ackridge is the registered owner of several vehicles with no TxTags, the electronic stickers people place on their windshields to automatically pay a toll via an electronic account when they pass through a toll station. (Vehicles without stickers are photographed and the license plate noted; TXDOT then sends an invoice to the registered driver through the postal service.) Ackridge’s vehicles have benefitted from TXDOT toll roads in central Texas—without payment of thousands of tolls—for the last three years. With one vehicle, for example, Ackridge racked up 1,946 tolls totaling $1,892.70, plus another $42,735.00 in unpaid penalties. This first account (totaling $44,627.70) led to class C misdemeanor charges of Failure or Refusal to Pay Toll.1 TXDOT has yet to file on Ackridge’s other vehicles, which have racked up approximately 6,000 in unpaid tolls whose values and penalties total in excess of $80,000. Apparently, Ackridge has multiple vehicles, frequently utilizing the toll roads in central Texas for his flooring business.
    I first learned about Ackridge’s thousands of toll violations earlier this year when he chose to set the first class C charge for a jury trial in Williamson County. (Because TXDOT and the State had anticipated reaching a plea agreement and not actually going to trial, only three of his thousands of toll violations had been charged at that time.) As an assistant county attorney here, I try class C misdemeanor cases pending in the justice of the peace courts. I was curious why this man rejected the State’s plea offer, where he would pay $7,652.86 for his $44,627.70 of unpaid tolls and fees. I knew that the Texas Legislature recently codified the Failure or Refusal to Pay Toll as a criminal offense and that it carries a maximum fine of $250. The risk associated with jury trial was very high for the defendant, because if all 1,946 cases against him were filed and he were found guilty and assessed a maximum fine on each case, he would owe $486,500 in fines and fees, not to mention incur 1,946 class C criminal offenses on his record!
    Our plea offer, wherein he took a conviction for one class C offense, was placed on deferred with a payment plan for $7,652.86 for the second class C offense, and had the third (and final filed class C offense) dismissed after payment of the $7,652.86, seemed to be a very reasonable offer and would dispose of all 1,946 cases. However, Ackridge was adamant that he wanted to be tried by a jury of his peers. Even after the plea offer was conveyed to Ackridge in November 2010, he continued to use the toll roads, neither obtaining a TxTag nor paying one toll. 
    Once I learned that Ackridge was rejecting the plea offer, I deciphered from the applicable statute the legal elements of this new criminal offense. Essentially, I was going to have to prove beyond a reasonable doubt that on March 24, 2009, at County Road 138, Entrance L02 on State Highway 130 in Williamson County, Charles Ackridge was the legal registered owner of a motor vehicle, with license plate such-and-such, and therefore the responsible for the non-payment of a toll at a tolling point. He failed to pay the proper toll and corresponding administrative fee within the time specified by the Notice of Toll Violation after written notice was sent by first-class mail to his address, as shown in the vehicle registration records of the Texas Department of Motor Vehicles. I knew Ackridge’s defense was that he had “no written notice” of his tolls, because he actually told this to the media, KXAN News, last November when he originally rejected the plea offer. On the contrary, TXDOT had alerted Ackridge to his thousands of unpaid tolls by mailing him two invoices and one violation notice for each toll via first-class mail to his home address, as the law requires. In TXDOT’s customer service records, there were notations that Ackridge also spoke about his balance with two customer service representatives over the phone. Furthermore, after the court filing, TXDOT records showed Ackridge went to TXDOT to speak to a representative in person. At this point, it was abundantly clear that Ackridge was aware of his tolls, ignoring TXDOT’s past-due notices, continuing to use the toll roads, outright refusing to pay for all of his tolls and fees, and rejecting any plea offers by the State. Jury trial was inevitable.

Voir dire
When we proceeded to jury trial and began voir dire, I knew it would be important to ask questions of the jury panel to solicit any negative biases regarding toll roads and the notice system for nonpayment of tolls. So I asked the following:
    1) Who has ever used the tollway?
    2) Who has a TxTag? If not, why not?
    3) What is your opinion of having to pay to use toll roads?
    4) Have you ever had difficulty paying for a toll by mail?
    5) Do you think a person should be allowed to drive on the toll road and not pay for it?
    6) Do you agree that the failure to pay a toll should be a class C misdemeanor with a fine up to $250?
    7) Do you agree that it is a person’s choice to use the toll road and that that person must be accountable and pay for the toll and any late fees?
    8) Does anyone think it is unfair to hold the registered owner of a vehicle criminally liable for the nonpayment of a toll associated with his vehicle?
    9) On a scale of 1 to 5: “1” being that you hate toll roads and think you should not have to pay to drive on them, and “5” being that you love toll roads and think it is so worth the price of the toll to get to drive on toll roads, where do you fall?
    Most of the venire panel had a very favorable opinion of the toll road system and absolutely no trouble paying for their tolls (either by TxTag or by mail). There were a few people completely unfamiliar with the toll road system, and one person out of 20 who had difficulty receiving notice and who complained of the high fees. Many people had challenged certain toll violations and TXDOT had worked with them effectively to clear up any misstatements.  Overall, the panel’s response to the toll road system was extremely positive, and people agreed that if you ride, you should pay.

Going to trial
We then began the guilt/innocence phase of the jury trial. Judge Judy Hobbs of Precinct 4 presided and chose to bifurcate the trial so that the State had to first prove a single violation against Ackridge for March 24, 2009 (one of his earlier violations, we charged before the statute of limitations for prosecution would run). We could not introduce his thousands of other violations during guilt/innocence but only for purposes of punishment. In what TXDOT was calling nearly a “case of first impression,” numerous TXDOT representatives sat in during the trial to learn the outcome of this new kind of criminal case.  I’ve tried class C misdemeanors with large member audiences because of victims’ families, but I’ve not tried any with so many interested employees of a state agency! And I certainly did not expect that one 60-cent toll violation case would get so much media attention.
    During my opening statement and closing argument to the jury, I said that Ackridge’s March 24, 2009, toll violation was, simply, a case about accountability; if the State proved the vehicle registered to him drove through a particular tolling point on the alleged offense date and did not pay after proper and timely notice, then Ackridge must be held accountable for his violation. There are no “free rides” on the toll road.
    The State’s witnesses, Michael Sullivan of the Law Enforcement Division of the United States Postal Service, and Colleen Davis, Court Liaison Coordinator for TXDOT, were very organized and helpful. Specifically, to prove the only disputed element at jury trial, proper notice, I called Mr. Sullivan to show proper mailing to Ackridge and receipt of mail at his residence. Sullivan testified that Ackridge has not changed his place of residence for the last three years, that he has only one address listed on his motor vehicle registration records (his residential address), and that he has never had any returned mail from that address.
    I then called Ms. Davis to the stand to establish through numerous business records (invoices and violation and collections letters) that Ackridge was properly and timely notified of his unpaid tolls, including the one in question. She was an extremely organized and articulate witness for the State. Her testimony showed that the TXDOT letters were sent via first-class mail, as statute requires, to Ackridge at his known residential address, and there was no returned mail on record. Ackridge did not testify at the jury trial, so there was no evidence to rebut that TXDOT properly and timely sent Ackridge written notice.
    In addition to witness testimony, I had also gathered the necessary trial exhibits (letters, forms, vehicle registration and title records, etc.) from TXDOT. I used PowerPoint to organize all of the TXDOT account documentation to present during Davis’s direct examination. I also located maps and TXDOT flow charts of how tolls become violations and how violations are properly noticed. It truly felt like a white-collar crime with all of the paperwork that had to be admitted to prove Ackridge was properly notified of his violations. There were literally tens of thousands of documents, kept in the regular course of business with TXDOT, for all of Ackridge’s 1,946 unpaid tolls. Certainly, in the case on March 24, 2009, alone, there was overwhelming and well-documented evidence that Ackridge had repeatedly received notice of his violation and failed to pay it even two years later. Through the testimony of Sullivan and Davis, and the exhibits entered into evidence, the jury followed the long paper trail that led to Ackridge’s guilt.
    Interestingly, Ackridge’s defense attorney, Ellie Ruth, argued in opening and closing that the jury could, by its verdict, send a clear message to the Legislature that drafted §228.055 that the notice system for these toll violation cases is flawed. For example, the Legislature could have required certified mail with return receipt, instead of just first-class mail, to ensure notice. (This option was in fact contemplated and rejected by the Legislature for being cost-prohibitive, as noted in the statute’s legislative history.)
    The prosecution countered that a jury trial is not the proper forum to enact legislative change. Ackridge was the one on trial, not TXDOT. The jury’s purpose is to decide the facts of Ackridge’s unpaid toll case, weigh the credibility of the witnesses, and determine guilt. In this case, there was evidence beyond a reasonable doubt that Ackridge’s vehicle utilized the toll road and he failed to pay his toll; therefore, he should be held accountable for his nonpayment. Thus, the jury could send a clear message to Ackridge: If he uses the toll road, he should pay for it.

Seven-minute decision
The jury convicted Ackridge of Failure or Refusal to Pay Toll in seven minutes. Jurors then heard punishment evidence of his thousands of unpaid toll violations with TXDOT and consequently assessed the $250 maximum fine for the offense on March 24, 2009. The jury spoke to the judge, prosecution, TXDOT, and the defense post-deliberations and said that there was no question that Ackridge had proper and timely notice of his toll violation and had failed to pay it. Moreover, the fact that he had not paid for thousands of other toll violations that he let accumulate over the past several years was egregious to the jury, thus resulting in their assessment of a maximum fine. Ackridge told KXAN news after the trial that he was “disappointed” with the jury’s verdict. I informed the media that I believed the jury’s seven-minute guilty verdict sent a very clear message to Ackridge that he will be held accountable for his use of the toll roads.
    For what was a 60-cent toll, Ackridge is now liable for a $250 class C misdemeanor conviction. And he has 1,945 other toll violation cases, which ultimately may still be tried before a jury in Justice of the Peace 4. In coming months, the State will hold a pretrial hearing with Ackridge and his attorney to determine whether the defendant will re-consider a plea offer or whether the State will need to proceed with filing the thousands of other toll violation cases against him. Currently, he is still accountable for tolls and fees in excess of $80,000.
    Because I was in unchartered territory, trying a defendant for violating the new law of Failure or Refusal to Pay Toll, I created a template via PowerPoint to organize the exhibits and witness testimony pertaining to each legal element of the offense so the jury could wade through the massive amounts of information and find the defendant guilty. One trial observer said I really “hand-held” the jury and explained every piece of evidence. I found the visual presentation of evidence to be very helpful for them to understand such a document-intensive case.
    In the future, with Mr. Ackridge at the defense table or someone else, I will be able to utilize my PowerPoint presentation to try any Failure or Refusal to Pay Toll case. I am happy to share this presentation with any prosecutor taking a toll violation case to jury trial. It may seem daunting at first, with the stack of evidence to prove a class C misdemeanor, but, like any crime, it is simply necessary to know the legal elements and clearly present the facts that prove each element. Of course, it helps to have great punishment evidence, like 1,945 similar cases that the defendant has pending, before arguing for the maximum fine on one case. And, lastly, it helps to state a familiar truth in closing argument that ties the whole case together: There is no such thing as a free ride!

Editor’s note: Defendant Charles Ackridge went to court again in mid-April over the second Class C charge of Failure or Refusal to Pay Toll and was again found guilty. On the third charge, he pled guilty and was placed on deferred for 30 days; the conditions of deferred included paying court costs, opening a TxTag account, and entering into a collections agreement with TXDOT to pay more than $21,000 in tolls, fees, and penalties. If Ackrdige complies with these terms, there will be no additional charges filed on his remaining toll violations.

Endnote

1 See Tex. Trans. Code §228.055.