Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAL
OF TEXAS
March 7, 1988
Honorable Frank Hill Opinion NO. JM-869
Kendall County Attorney
207 E. San Antonio Street Re: Whether a "ticket"
Boerne, Texas 78006 given to a defendant may
serve as the complaint in
a trial de novo in county
court (RQ-1196)
Dear Mr. Hill:
you ask whether a "ticket" given to a defendant may
serve as the complaint in a trial de novo in county court.
Section (d) of article 27.14 of the Code of Criminal
Procedure, as amended by Acts 1985, 69th Leg., ch. 87, at
514, effective September 1, 1985, provides:
If written notice of a traffic violation
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 cony
serves as a complaint to which the defendant
mav nlead 'auiltv.' 'not auiltv.' or 'nolo
contendere.' If the defendant DleadS 'not
auiltv' to the offense, a comolaint 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 defendant may waive
the filing of a sworn complaint 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.
C
Articles 44.17 and 44.18 of the Code of Criminal
Procedure govern the conduct of a trial de novo in county
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Honorable Frank Hill - Page 2 (JM-869)
court upon appeal of a judgment from a justice court or
municipal court. Article 44.17 provides:
In all appeals to a county court from
justice courts and municipal courts other
than municipal courts of record, the trial
shall be de novo in the trial in the county
court, the same as if the prosecution had
been originally commenced in that court. An
appeal to the county court from a municipal
court of record may be based only on errors
reflected in the record.
Article 44.18 provides:
In appeals from justice and corporation
courts, all the original papers in the case,
together with the appeal bond, if any, and
together, with a certified transcript of all
the proceedings had in the case before such
court shall be delivered without delay to
the clerk of the court to which the appeal
was taken, who shall file the same and
docket the case.
These provisions have been interpreted to mean that it is
not necessary for the prosecution to file an information
in county court when a judgment is appealed from a justice
court or municipal court "because the original complaint
in the justice court serves as the functional equivalent
of an information in the county court." Blevins v. State,
672 S.W.2d 828, 829 (Tex. APP. - Corpus Christi 1984, no
pet.).
You ask whether the rule of Blevins applies in a case
in which a person pleaded guilty or nolo contendere to a
traffic complaint in the lower court, appealed the lower
court judgment, and then pleaded not guilty in the county
court. You ask whether a ticket, which would have been a
proper complaint in the lower court because of the
defendant's plea of guilty or nolo contendere, could serve
as the complaint in the county court after the defendant
pleaded not guilty.
The Texas Supreme Court in Southern Canal Co. v.
State Board of Water Enaineers, 318 S.W.2d 619 (1958),
reviewed the scope of a trial de novo in county court.
The court stated as follows:
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Honorable Frank Hill - Page 3 (JM-869)
In IOne Star Ga Co. v. State 137 Tex.
279, 153 S.W.2d 68; 692, we said: 'Power
to try a case de Aovo vests a court with
full Dower to determine the issues and
riahts of all narties involved. nd to trv
the case as if the suit had Eeen filed
oriainallv in that court.' The sine gua non
of a de novo trial as that term is used to
describe a retrial of a matter or contro-
y``gy theretofore tried by another tribunal
is the nullification of the judgment or
order. of the first tribunal and a retrial of
the issues on which the iudoment or order
was founded. When jurisdiction of the
second tribunal attaches, the judgment or
order of the first tribunal is not merely
suspended, but is nullified. Examples of
that type of trial are found in our statutes
applicable to appeals from Justice Court
judgments and from awards made by the Indus-
trial Accident Board.
Section 16 of article 5 of our state
constitution provides: 'In all appeals from
Justices Courts there shall be a trial de
novo in the County Court . . .# In inter-
preting and applying that provision it is
held that the perfection of an appeal from a
judgment of a Justice Court to a County
Court glrnuls the Justice Court judgment.
(Last emphasis in original; others added.)
318 S.W.Zd at 622.
The Alabama Supreme Court in Vinvard v. Reoublic Iron
and Steel Co., 87 So. 552 (1921), had before it the issue
of whether a new or amended complaint could be filed in a
trial de novo. In Vinvard, the court stated that a new or
amended complaint may be filed, "provided it does note
exhibit an entire change of parties plaintiff or
defendant, and does not show a departure from, or change
in, the original form of action." 87 So. at 555.
Vinvard appears to be consistent with language in
Southern Canal that in a trial de novo there shall be a
retrial of the issues on which the iudoment was founded
and the case shall be tried as if it had been oriainallv
filed in that court.
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Honorable Frank Hill - Page 4 (JM-869)
You suggest that a defendant cannot object to the use
of the duplicate copy of the notice of violation as a
complaint for the first time in the trial de novo. Since -
the trial de novo vests the court with full aower to
determine the issues and riahts of all narties involved as
if the suit had been oriainallv filed in that court, it
follows that a defendant may raise a question about the
pleading for the first time in the de novo trial.
Therefore, we think that the language of articles
44.17 and 44.18 must yield to the language of article
27.14. Section (d) of article 27.14 provides that a
complaint shall be filed upon the defendant entering a
plea of "not guilty." Where the conviction has been based
on the notice of violation (serving as a complaint in the
inferior court) and upon trial de novo in the county court
the defendant enters a plea of "not guilty," a complaint
should be filed. The offense charged in the complaint
must be the one alleged in the inferior court upon which
the defendant was convicted. If the plea in the county
court de novo trial is lVguilty" or %olo contendere" the
duplicate copy of the notice upon which the conviction was
based in the inferior court may serve as the complaint.
?
SUMMARY
Where a conviction in an inferior court
is based on a plea of "guilty" or Wolo
contendere" in a case where the notice of
violation serves as the charging instrument
pursuant to section (d) of article 27.14,
Code of Criminal Procedure, a complaint
should be filed in a trial de novo in the
county court upon a plea of "not guilty"
being entered by the defendant. The
complaint must allege the same offense as
the one charged in the inferior court. If
the plea in the de novo trial in county
court is "guilty" or "nolo contendere," the
duplicate copy of the notice of violation
upon which the conviction was based in the
inferior court may serve as the complaint.
JIM MATTOX
Attorney General of Texas
,--.
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Honorable Frank Hill - Page 5 (JM-869)
P
MARYKELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
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