Untitled Texas Attorney General Opinion ( 1977 )

OP TEXAS
AURTIN. TNXAIS 78Wll
March 28, 1977
The Honorable Maurice S. Pipkin Opinion'No. H- 963
Executive Director
Judicial Qualifications Re: Whether a justice
Commission of the peace may require
Austin, Texas 78701 that a defendant appear
in person before a traffic
case can be disposed of.
Dear Mr. Pipk,in:
You have requested our opinion regarding the meaning of
"appear in court" as that phrase is used in sections 148
and 149 of article 6701d, V.T.C.S., the State Traffic
Regulations. Those sections provide:
Sec. 148. (a) Whenever a person is
arrested for any violation of this Act
punishable as a misdemeanor, and such
person is not immediately taken before a
magistrate as hereinbefore required, the
arresting officer shall prepare in duplicate
written notice to appear in court containing
the name and address of such person, the
license number of his vehicle, if any, the
offense charged, and the time and place when
and where such person shall appear in court.
Provided, however, that the offense of
speeding shall be the only offense making
mandatory the issuance of a written notice
to appear in court, and only then if the
arrested person gives his written promise to
appear in court, by signing in duplicate the
written notice prepared by the arresting officer;
and provided further, that it shall not be
mandatory for an officer to give a written
notice to appear in court to any person
arrested for the offense of speeding when.such
person is operating a vehicle licensed in a
state or country other than the State of Texas
or who is a resident of a state or country
other than the State of Texas.
p. 4012
The Honorable Maurice S. Pipkin - page 2 (H-963)
(b) The time specified in said notice to
appear must be at least ten (10) days after
such arrest unless the person arrested shall
demand an earlier hearing.
(c) The place specified in said notice to
appear must be before a magistrate within the
city or county in which the offense charged
is alleged to have been committed and who has
jurisdiction of such offense.
(d) The arrested person in order to secure
release as provided in this section, must give
his written promise so to appear in court by
signing in duplicate the written notice pre-
pared by the arresting officer. The original
of said notice shall be retained by said
officer and the copy thereof delivered to the
person arrested. Thereupon, said officer
shall forthwith release the person arrested,
from custody.
(e) Any officer violating any of the pro-
visions of this section shall be guilty of
misconduct in office and shall be subject to
removal from office.
Sec. 149. (a) Any person wilfully violating
his written promise to appear in court, given
as provided in this Article, is guilty of a
misdemeanor regardless of the disposition of
the charge upon which he was originally arrested.
(b) A written promise to appear in court may
be complied with by an appearance by counsel.
Specifically, you ask whether a person may satisfy the "appear
in court" requirement of section 148 by contacting the
appropriate justice of the peace by mail or by telephone.
You also inquire whether a defendant, acting through his
attorney, may plead not guilty by telephone and subsequently
mail an appearance bond to the justice of the peace.
In civil cases in Texas, it is well established that
a party may make an "appearance" in court without being
physically present in the courtroom. Devereaux v. Rowe ,
p. 4013
. -
The Honorable Maurice S. Pipkin - page 3 (H-963)
293 S.W. 207, 208 (Tex. Civ. App.. -- San Antonio 1927, no
writ). The act of filing an answer constitutes an appearance.
Clagett v. Neugebauer, 376 S.W.2d 768, 770 (Tex. Civ. App. --
Austin 1x4, no writ); Staley v.~ Western Steel Wire
-- & w
co., 355 S.W.2d 565, 567 (Tex. Civ. App. -- Dallas 1962,
writ ref'd n.r.e.). It might be argued, however, that,
under section 148, a defendant's execution of a written
promise to appear is a substitute for arrest, and that his
subsequent "appearance" ought to require his physical presence
in court. But section 148(b) undercuts this reasoning, by
providing that sa written promise to appear in court may
be complied with by an appearance by counsel."
Section 150 provides that sections 148 and 149
shall govern all police officers in making
arrests without a warrant for violations of
this Act;but the procedure prescribed herein
shall not otherwise be exclusive of any other
method prescribed by law for the arrest and
prosecution of a person for an offense of
like grade.
Thus, procedings against someone accused of violating the State
Traffic Regulations are not governed exclusively by sections
148 and 149, but may accord with article 27.14 of the Code of
Criminal Procedure, which provides:
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. ---
In a mis-
(Emphasis
P. 4014
. -
The Honorable Maurice S. Pipkin - page 4 (h-963)
Article 27.14 indicates that, in any traffic offense
"for which the maximum possible punishment is by fine only,"
which embraces every offense within the jurisdiction of a
justice court, a defendant may plead guilty by paying a
fine or by paying "an amount accepted by the court." In
our opinion, as soon as a defendant has thereby paid a
fine and such fine has been received and accepted by the
court, he has "appeared in court" for purposes of section
148. Of course, a justice of the peace may insist that a
defendant mak,e an appearance in the courtroom simply
by refusing to set the amount of the fine by mail or by
telephone. If, however, the justice of the peace prefers
to handle the transaction without requiring the defendant's
presence in court, either personally or by counsel, there
is nothing in section 148, when read in conjunction with
article 27.14, which would prevent his doing so. In such
instance, a defendant has entered his plea and thus "appeared"
when the justice has received and accepted the payment tendered.
If the defendant mails a written plea of guilty or nolo
contendere to the justice of the peace, but fails to enclose
payment in the amount of the fine, he has not fully complied
with the requirements of article 27.14 for entering a plea.
In such case, he is apparently still obliged to fulfill his
written promise to appear in court, which may be satisfied by a
personal appearance on the appointed date or by an appearance
of counsel. If the defendant wilfully violates that written
promise, he is guilty of a misdemeanor under section 149(a).
Your second question is whether, under section 148,
a defendant may, through his attorney, plead not guilty and
subsequently mail an appearance bond to a justice of the
peace. Although, as we have noted, the Code of Criminal
Procedure makes special procedures available for pleas of
guilty in misdemeanor cases, it is more restrictive regarding
pleas of not guilty. Article 27.16 provides:
The plea of not guilty may be made orally
by the defendant or by his counsel in
open court. If the defendant refuses to
plead, the plea of not guilty shall be
entered for him by the court.
In our opinion, a defendant who promises to "appear in court"
pursuant to section 148, and who wishes to plead not guilty,
must do so "in open court," either personally or through
P. 4015
. -
The Honorable Maurice S. Pipkin - page 5 (H-963)
his counsel. Under section 149 of article 6701d, however,
there is nothing to prevent the magistrate and defendant
from communicating to arrange for disposition of the case by
a single appearance so that the plea of not guilty and the
trial could be conducted at the same time.
SUMMARY
A defendant who wishes to plead guilty may
I,
appear in court" for purposes of section
148 of article 6701d, V.T.C.S., by mailing
payment of a fine set by the justice of the
peace. A defendant who wishes to plead
not guilty under section 148 must do
so in open court, either personally or
through his counsel, but the magistrate
may arrange for disposition of the case
on a single appearance on a date other
than that specified in the original
promise to appear.
Very truly yours,
,,,',. C‘ /- 2h
OHN L. HILL
Attorney General of Texas
/'
-7
APPROVED:
c. ROBERT HEATH, Chairman
Opinion Committee
P. 4016