Untitled Texas Attorney General Opinion ( 1988 )

Mamh 29, 1988
Honorable Randy Sikes Opinion No. JR-876
Brown County Attorney
Courthouse Re: Effect of 1985 amend-
Brownwood, Texas 76801 ment to article 27.14, Code
of Criminal Procedure, on
traffic cases in justice of
the peace courts (RQ-1115)
Dear Mr. Sikes:
The questions you ask relate to the use of a written
notice of a traffic violation serving as a complaint in
justice court under the conditions set forth in article
27.14 of the Code of Criminal Procedure. Article 27.14
provides as follows:
(a) A plea of 'guilty' or a plea of 'nolo
contendere' in a misdemeanor case may be
made either by the defendant or his counsel
in open court; in such case, the defendant
or his counsel may waive a jury, and the
punishment may be assessed by the court
either upon or without evidence, at the
discretion of the court.
(b) A defendant charged with a misdemean-
or for which the maximum possible punishment
is by fine only may, in lieu of the method
provided in Subsection (a) of this article,
mail to the court a plea of 'guilty' or a
plea of 'nolo contendere' and a waiver of
jury trial. The defendant may also request
in writing that the court notify the
defendant, at the address stated in the
request, of the amount of an appeal bond
that the court will approve. If the court
receives a plea and waiver before the time
the defendant is scheduled to appear in
court, the court shall dispose of the case
without requiring a court appearance by the
defendant. The court shall notify the
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Honorable Randy Sikes - Page 2 (JR-876)
defendant by certified mail, return receipt
requested, of the amount of any fine
assessed in the case and, if requested by
the defendant, the amount of an appeal bond
that the court will approve. The defendant
shall pay any fine assessed or give an
appeal bond in the amount stated in the
notice before the 31st day after receiving
the notice.
(c) In a misdemeanor case arisina out of
a movina traffic violation for which the
onlv. navment of a fine. or an amount
accented bv the court constitutes a findinq
of auiltv in onen court. as thouah a olea of
nolo contendere had been entered bv the
defendant.
(d) If written notice of a traffic viola-
tion for which maximum possible punishment
is by fine only or of a violation relating
to the manner, time, and place of parking
has been prepared, delivered, and filed with
the court and a legible duplicate copy has
been given to the defendant, the dunlicate
G DV swves as a comolaint to which the
dzfendant mav olead 'auiltv.' 'not auiltv.'
or 'nolo contendere.' If the defendant
pleads 'not auiltv' to the offense. a com-
laint shall be filed that conforms to the
reouirements of Article 45.01, Code of
Criminal Procedure, 1965, and that complaint
serves as an original complaint. A defend-
ant may waive the filing of a sworn com-
plaint and elect that the prosecution
proceed on the written notice of the charged
offense if the defendant agrees in writing
with the prosecution, signs the agreement,
and files it with the court. (Emphasis
added.)
Your concern appears to be directed to the use of the
duplicate copy of the notice as a complaint in justice
court following the entry of a plea of guilty or nolo
contendere to a moving traffic violation pursuant to
section (d) as amended by Senate Bill 392, Acts 1985, 69th
Leg., ch. 87, at 514, effective September 1, 1985.
p. 4271
,
Honorable Randy Sikes - Page 3 (JR-876)
You ask the following questions:
1) Does S.B. 392 apply to Justice Courts
or only Municipal Courts?
2) If S.B. 392 applies to Justice
Courts, are any requirements necessary to
charge an offense?
3) Must the ticket be sworn in order to
be used as a complaint?
4) What language is necessary on the
ticket for it to be a valid complaint?
5) Should the ticket include any of the
following:
a) in the name and by the authority
of the State
b) Before me the undersigned author-
ity on this day personally appeared your
C affiant who after being by me first duly
sworn says upon his oath that he has good
reason to believe and does believe
cl did then and there operate and
drive a vehicle upon a public
street or highway of Texas
d) the unreasonable, imprudent
and unlawful speed
e) which was then and there a
speed greater than was reasonable and
prudent under the conditions then exist-
ing
f) the prima facie reasonable and
prudent speed was
9) against the peace and dignity of
the State
6) Willhabitual violator cases have to
be dismissed in an administrative hearing on
the argument that a conviction cannot be
used because of a lack of complaint or a
fi
fundamentally defective complaint due to the
p. 4272
Honorable Randy Sikes- Page 4 Of-876)
use of the ticket as a complaint without any
charging material?
7) If the statute applies to Justice
Courts and a complaint needs to be made on a
plea of not guilty, should the complaints
comply with article 45.01 or 45.15?
A review of the history of instruments charging
violations in criminal cases in this state is relevant to
a determination of the issues you have presented.
Prior to its amendment on November 5, 1985, section
12 of article V of the Texas Constitution provided:
Sec. 12. All judges of courts of this
State, by virtue of their office, be
conservators of the peace throughout the
State. The style of all writs and process
shall be, 'The State of Texas.' All prose-
cutions shall be carried on in the name and
by authority of the State of Texas, and
shall conclude: 'Against the peace and
dignity of the State.'
After the adoption of the 1985 amendment, section 12
of article V states as follows:
Judges to be conservators of the peace;
indictments and informations.
(a) All judges of courts of this State,
by virtue of their office, are conservators
of the peace throughout the State.
(b) An indictment is a written instrument
presented to a court by a grand jury charg-
ing a person with the commission of an
offense. An information * written
instrument presented to a ?ouk by an
attorney for the State charging a person
with the commission of an offense. The
practice and procedures relating to the use
of indictments and informations, including
their contents, amendment, sufficiency, and
requisites, are as provided by law. The
presentment of an indictment or information
to a court invests the court with jurisdic-
tion of the cause.
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Honorable Randy Sikes - Page 5 (JR-876)
The bill analysis to S.J.R. 16 proposing the 1985
amendment contains the following comment:
By omitting the Constitutional language
in an indictment, this bill allows for fewer
technical conviction reversals if it has
been mistakenly omitted from an indictment
or information. In addition, the language
of an indictment, and other requisites u
be am ndable bv the leaislature as the needs
of tZe criminal justice system change.
Thereby speeding the trial process and
avoiding reversals of cases for mere tech-
nicalities that do not affect the sub-
stantive rights of defendants. (Emphasis
added.)
Bill Analysis to S.J.R. No. 16, 69th Leg. (1985), on file
in Legislative Reference Library.
The 1985 amendment omitted the requirement "all
prosecutions shall be carried on in the name and by the
authority of the State of Texas, and shall conclude,
,- 'against the peace and dignity of the State'." (Emphasis
added.)
The courts prior to the 1985 amendment had held that
if the foregoing beginning and conclusion were omitted the
charging instrument was void. Daniels v. State, 573
S.W.2d 21 (Tex. Crim. App. 1978). The courts reasoned
that such omissions were violative of a constitutional
mandate and resulted in a void charging instrument. It
was held that such a fundamentally defective instrument
failed to invoke the jurisdiction of the court. Bruce v.
State, 622 S.W.2d 624 (Tex. APP. - Amarillo 1981, no
writ). The omission of these requirements in the 1985
amendment obviated the constitutional recuirement that
such language appear in all instruments charging a
criminal offense.
In Wilson v. State, 224 S.W.2d 234, 237 (1949) the
Court of Criminal Appeals stated, "The jurisdiction of the
court is a matter of statutory enactment and authority
must be found not only to hear the matter, but also to
dispose of the same." The 1985 amendment to section 12 of
article V, clearly provides the practice and procedure
relating to indictments and information and the sufficien-
cy of their contents are as provided by law. While
complaints were not mentioned, absent a constitutional
mandate to the contrary, the practice and procedure
p. 4274
Honorable Randy Sikes - Page 6 (JR-876)
relating to complaints and the sufficiency of their
contents is a matter for the legislature. In article
27.,14 section (d) of the Code of Criminal Procedure, the
legislature has provided for a limited use of the notice
of the violation to serve as a complaint in pleas of
guilty and nolo contendere in traffic and parking viola-
tions where the maximum possible punishment is by fine
only. Article 6701d, section 148, V.T.C.S., sets forth
the requirements for notices in traffic violations, as
follows:
(a) Whenever a person is arrested for any
violation of this Act punishable as a misde-
meanor, and such person is not immediately
taken before a magistrate as hereinbefore
required, the arrestina officer shall nre-
pare in dUDliC&e written notice to aooear
in court containina the name and address of
such nerson, the license number of his
vehicle. if any, the offense charaed. and
the time and nlace when and where such
person shall aonear in court. (Emphasis
added.)
In response to your questions numbered "2" through
t15,t'the requisites of a complaint under the limited
conditions provided in section (d) of article 27.14 of the
Code of Criminal Procedure are the requirements for a
notice set forth in article 6701d, section 148, V.T.C.S.
Your first question relative to whether this provi-
sion applies to justice courts appears to have been
prompted by the requirement that a complaint be filed
conforming to article 45.01, Code of Criminal Procedure,
in the event a defendant enters a plea of not guilty and
the fact that prior to amendment, section (d) of article
24.17 applied only to parking offenses, violations which
commonly occur within the corporate limits of a city.
Article 45.01 sets forth the requirements for a complaint
in the corporation court. Section (d) in addressing the'
circumstances in which the notice of violation might be
used as a complaint did not limit its use to the corpora-
tion court. No other legislation at that or the subse-
quent 70th Legislature addressed this question. Thus, it
is the latest statute of enactment. See Gov't Code
5311.025(a). In Valleio v. State, 408 S.W.2d 113 (Tex.
Crim. App. 1966), the court found that article 45.17 of
the Code of Criminal Procedure, providing that a defendant
shall not be discharged by reason of an informality in a
complaint, applied to the corporation court despite the
p. 4275
Honorable Randy Sikes - Page 7 (JR-876)
fact that only the justice court was mentioned in the
statute. Undoubtedly, the court's rationale in Valleio
was based on the fact that the charging instrument in both
justice and corporation courts is the complaint. That
same rationale would appear to be more applicable in the
instant case where the legislature has not expressed any
intention to limit the procedure outlined for pleas of
guilty and nolo contendere to the corporation court.
Article 27.14, section (d), Code of Criminal Procedure,
applies to both justice and municipal courts.
In your question numbered "611 you ask if convictions
alleged in a habitual violator case will withstand attack
in an administrative hearing where it is contended "that a
conviction cannot be used because of the lack of a com-
plaint or a fundamentally defective complaint due to the
use of the ticket as a complaint?" You undoubtedly are
making reference to the procedure outlined in section 22
of article 6687(b), V.T.C.S., providing for a hearing to
determine whether a recommendation is to be made to the
Director of the Department of Public Safety for suspension
of the operator's driver's license for a period of not
more than one year. Subsection (b) of section 22 sets
forth the circumstances under which a suspension is
authorized. One of the conditions under which
suspension recommendation is authorized is where th:
operator "is a habitual violator of the law," defined in
subsection (b)(4) as follows:
The term 'habitual violator' as used
herein, shall mean any person with four (4)
or more convictions arising out of different
transactions in a consecutive period of
twelve (12) months, or seven (7) or more
convictions arising out of different trans-
actions within a period of twenty-four (24)
months. (Certain named violations are spec-
ifically excluded.)
In Texas DeDartment of Public Safetv v. Casselman,
417 S.W.2d 146 (1967). the Texas Suoreme Court addressed
the question of.attacking prior convictions alleged in a
section 22, article 6687(b) habitual violator proceeding.
In Casselman, the court stated in relevant part as
follows:
‘[IIt should be made abundantly
clear that in this case we are not
concerned with criminal penalties but
rather with an administrative and
p. 4276
Honorable Randy Sikes - Page 8 (JR-8761
regulative power vested in the Texas
Department of Public Safety which
power has for its purpose the
protection of the lives and property
of those using the highways. A
driver's license is not suspended for
the purpose of visiting additional
punishment upon an offender but in
order to protect the public against
incompetent and careless
drivers. . . .' [Texas Deaartment of
Public Safetv . Richardson, 384
S.W.2d 128 (Tex. :964)]
Cases in which criminal punishments or
enhancements of criminal punishment are
sought to be avoided by attacks in courts
having criminal jurisdiction are not
apposite here. This is not a criminal case
but one to determine whether a party#s
privilege to drive a motor vehicle over the
highways of Texas should be suspended in the
interest of public safety. It may be that
if a jail sentence were assessed because of
the violation of a traffic safety rule, and
a defendant could show upon the trial that
he neither appeared in person nor by
attorney, he could secure his release by
writ of habeas corpus issued by a court of
proper jurisdiction, but such circumstance
does not bear upon the issue involved in a
driver's license suspension case.
. . . .
Although the record supporting a judgment
may carry the seeds of infirmity that prove
fatal to the judgment when exposed upon a
direct attack or in a habeas corpus
proceeding, it cannot be said that any and
all persons may ignore the judgment before
it is pronounced invalid or void by proper
authority. In this case, the County Judge
was not considering a direct attack or
conducting a habeas corpus hearing and was
no more authorized to ianore the iudoments
of convictions than would a orison warden be
justified in discharaina a nrisoner before
the iudoment convictina such orisoner had
been declared invalid bv a court of
p. 4277
Honorable Randy Sikes - Page 9 (JM-876)
P
aetent iurisdiction. There are proper
methods and competent tribunals to
accomplish the destruction of judgments, but
a collateral attack in a proceeding such as
this is not one of them.
Apparently the petitioners here did not
take the trouble to contest the charges made
against them in the criminal courts but
contented themselves with paying
comparatively small fines and allowing
judgments of conviction to be entered
against them. Then, based upon the record
thus made or which they allowed to stand,
they now seek to make the convenience
afforded them a ground for attacking the
judgments of convictions rendered against
them.
. . . .
The abstracts of judgments provided for
by Article 6701d, 5152, are admissible in
evidence under the provisions of Article
3731a, V.T.C.S., as they are certificates or
reports made by an officer of this state or
a governmental subdivision thereof in the
performance of the functions of his office.
See Texas Deoartment of Public Safetv v.
Richardson #suDra, and authorities therein
cited. Such abstracts of iudcrments. which
are ouite aenerallv referred to as notices
of conviction, nurnort to be statements of
information disclosed bv the record which
the iudae or maaistrate is recuired to keeD.
Thev constitute orima facie evidence of the
contents of a iudoment. However, as we
stated in Texas DeDartUEnt of Public Safety
v. Miller, Tex., 386 S.W.2d 760.
'If the notice of a conviction be
inaccurate it may be corrected by the
use of properly authenticated copies
of the docket of the justice of the
C peace or the corporation judge as was
done in DeD.?CtmeIIt of Public Safetv v.
Guleke, Tex. Civ. App., 36;n Sit,:
662, no wr. hist. (1963). c
the notices or abstracts mav be
corrected bv either oartv. But until
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Honorable Randy Sikes - Page 10 (JR-876)
corrective measures are taken. such
notices or abstracts are to be
accented as evidence of 'the matters
stated herein.' (Emphasis added.)
417 S.W.2d at 147.
The use of the duplicate traffic violation notice as
a complaint pursuant to section (d) of article 27.14 of
the Code of Criminal Procedure, cannot be attacked in an
administrative proceeding brought in an article 6687(b),
V.T.C.S., proceeding to suspend an operators license in a
"habitual violator" case. Casselman provides that the
abstracts of judgments and notices of convictions may be
corrected if inaccurate, otherwise they are to be accepted
as evidence of the matters stated therein. It will be
assumed that a direct attack is not made upon the use of
such a charging instrument since a conviction can only be
had under section (d) where the plea is guilty or nolo
contendere. You do not ask nor do we explore any possible
attacks which may be made upon the conviction in an appeal
in the criminal context or by way of habeas corpus. Any
such determination would necessarily have to be made on a
case-by-case basis. ?
In your question numbered It7t* you ask if the
complaint should comply with article 45.01 or article
45.15 of the Code of Criminal Procedure in the event the
defendant enters a plea of "not guilty." Article 45.01
contains the requirements for a complaint in corporation
court and provides
Proceedings in a corooration court shall
be commenced by complaint, which shall
begin: 'In the name and by authority of the
State of Texas * ; and shall conclude:
'Against the peace and dignity of the
State': and if the offense is only covered
by an ordinance, it may also conclude:,
'Contrary to the said ordinance.' The
recorder shall charge the jury when
requested in writing by the defendant or his
attorney. Complaints before such court may
be sworn to before any officer authorized to
administer oaths or before the recorder, ?
clerk of the court, city secretary, city
attorney or his deputy, each of whom, for
that purpose, shall have power to administer
oaths. (Emphasis added.)
p. 4279
Honorable Randy Sikes - Page 11 (JR-876)
Article 45.15 does not relate to the requirements for a
complaint. Articles 45.16 and 45.17 of the Code of
Criminal Procedure address the matter of the allegations
which must appear in a complaint in justice court.
Article 45.16 provides as follows:
Upon complaint being made before any
iustice of the oeace, or any other officer
authorized by law to administer oaths, that
an offense has been committed in the county
which a justice of the peace has jurisdic-
tion finally to try, the justice or other
officer shall reduce the same to writing and
cause the same to be signed and sworn to by
the complainant. It shall be duly attested
by the officer before whom it was made: and
when made before such justice, or when
returned to him made before any other
officer, the same shall be filed by him.
(Emphasis added.)
Article 45.17 states as follows:
Such complaint shall state:
1. The name of the accused, if known,
and if unknown, shall describe him as
accurately as practicable:
2. The offense with which he is charged,
in plain and intelligible words;
3. That the offense was committed in the
county in which the complaint is made; and
4. It must show, from the date of the
offense stated therein, that the offense is
not barred by limitation.
Article 27.14, section (d), Code of Criminal
Procedure, is unambiguous in its requirement that the
complaint conform to the requirements of article 45.01.
It should be noted that, despite the fact that the 1985
amendment to section 12 of article V of the constitution
P
omitted the requirement that all prosecutions contain the
formal beginning and conclusion, article 45.01 has not
been amended to remove these requirements. While section
(d) of article 27.14 states that upon a plea of "not
guilty" a complaint conforming to article 45.01 shall be
filed, a safer practice in the justice court would be to
p. 4280
Honorable Randy Sikes - Page 12 W-876)
exercise care that the complaint meets the requirements of
the three statutes relating to the requisites of com-
plaints in both justice and corporation courts.
Section (d) of article 27.14 of the Code of Criminal
Procedure (as amended by S.B. 392, Acts 1985, 69th Leg.,
ch. 87, at 514, effective September 1, 1985), applies to
justice and corporation courts. When the conditions
imposed by section (d) for use of a duplicate of the
notice as a complaint are met, such notice shall conform
to the requirements of section 148 of article 6701d,
V.T.C.S. Prior convictions alleged in a habitual traffic
violator administrative proceeding held pursuant to
section 22 of article 6687(b), V.T.C.S., cannot be
attacked on the basis that such convictions are based on a
traffic violation notice which serves as a complaint
pursuant to section (d) of article 27.14. While section
(d) of article 27.14 states that upon a plea of "not
guilty" a complaint shall be filed conforming to article
45.01, a safer practice in the justice court would be to
exercise care that the complaint conforms to all of the
requirements set forth in articles 45.01, 45.16 and 45.17
of the Code of Criminal Procedure.
SUMMARY
Section (d) of article 27.14 of the Code
of Criminal Procedure (as amended by S.B.
392, Acts 1985, 69th Leg., ch. 87, at 514,
effective September 1, 1985), applies to
justice and corporation courts. When the
conditions imposed by section (d) for use of
the notice as a complaint are met, such
notice shall conform to the requirements of
section 148 of article 6701d, V.T.C.S.
Prior convictions alleged in a habitual
traffic violator administrative proceeding
held pursuant to section 22 of article
6687(b), V.T.C.S., cannot be attacked on the
basis that such convictions are based on a
traffic violation notice which serves as a
complaint pursuant to section (d) of article
27.14. While section (d) of article 27.14
states that upon a plea of "not guilty" a
complaint shall be filed conforming to
article 45.01, a safer practice in the
justice court would be to exercise care that
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Honorable Randy Sikes - Page 13 (JM-876)
the complaint conforms to all of the
requirements set forth in articles 45.01,
45.16 and 45.17 of the Code of Criminal
Procedure.
JIM MATTOX
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 4282