Untitled Texas Attorney General Opinion ( 1987 )

May 18, 1987
Honorable D. C. Jim Dozier Opinion No. JM-701
Montgomery County Attorney
Courthouse lb: Whether a magistrate may require
Conroe, Texas 77301 as a precondition for obtaining a
trial, the posting of an appearance
bond in minor traffic offense cases
under article 6701d, V.T.C.S.
Dear Mr. Dozier:
You ask:
May a magistrate require an appearance.bond to
be posted in a case involving the alleged viola-
tion of a speeding law (under article 6701d,
P V.T.C.S.) as a precondition for obtaining a trial?
The information you have furnished reflects that the question you
have asked has arisen in several of the municipal and~justice bourts
of Montgomery County under the following scenario.
'A,' a motorist, a resident of the state of
Texas who is operating a vehicle licensed in the
State of Texas, is stopped for speeding and issued
a citation. AC the time of the stop, 'A' provides
the information required by article 6701d, section
148 and signs a written promise to appear in court
which appears on the citation [sic]. Feeling that
he is not guilty of the offense with which he is
charged, 'A' asks the arresting officer how he
can obtain a trial. In response to his request,
the officer hands 'A' an information sheet on
the letterhead of the municipal court for the
appropriate jurisdiction. In addition to other
information provided, the sheet contains the
following:
If you wish to enter a plea of Not Guilty
and desire a trial, you must so indicate in the
proper space below. If you enter a plea of Not
/--
Guilty, you must make an appearance bond for
double the amount of your fine. Return the
p. 3246
Honorable D. C. Jim Dozier - Page 2 (JM-701)
bond end a letter stating that you wish to
contest the citation. if you wish to have a
jury trial or not. . . .
Section 148 of article 6701d, V.T.C.S., provides:
(a) Whenever a person is arrested for any
violation of this Act punishable as a mlsdsmeanor,
and such person is not immediacrly taken before a
magistrate es hereinbefore required, the arresting
officer shall prepare in duplicate wrltten notice
to appear in court containing the name end address
of such person. the license number of his vehicle,
if any. the offense charged, and the time end
place when and where such person shall appear in
court. Provided, however, that the offense of
speeding shall be the only offense making men-
datory 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 shell not be mandatory for an officer to
give a written notice to app&x in court to any
person arrested for the offense of speeding when
such person is operating e vehicle licensed in a
stare or country other then the State of T&as or
who is a resident of e state or country other then
the State of Texas, except 88 provided by the
Nonresident Violator Compact of 1977. [article
67Old-231.
(b) The time specified in said notice to
appear must be at least ten (10) days after such
arrest unless the person arrested shell demand an
earlier hearing.
The provisions of section 148 make it mandatory upon the officer
to issue a notice to appear in court, where (1) the offense is
speeding; (2) the arrested person gives his written promise to appear
in court; end (3) the person arrested is nut operating a vehicle
licensed in a state or county other then the State of Texas. Taylor
v. State, 421 S.W.2d 403 (Tex. Crim. App. - 1967); cert. denied, 393
U.S. 916 (1968). Under the scenario you have provided, the sole basis
for the requirement of an appearance bond is the election of the
accused to enter a plea of not guilty.
As was emphasized in Attorney General Opinion JM-363 (1985).
articles 17.01 and 17.15 of the Texas Code of Criminal Procedure
confer upon a court broad discretion in setting bail; however, it is
p. 3247
Bouorable D. C. Jim Dozier - Page 3 (JM-701)
our opinion that such discretion does not extend to an instance where
the legislature mandates chr issuance of a notice to appear in court.
SUMMARY
Where the accused meets the conditions set
forth in section 148, article 6701d. Texas Code of
Criminal Procedure, for mandating a notice to
appear in court to answer a charge for the offense
of speeding, an appearance bond may not be
required, solely because the accused makes it
known to the arresting officer thar he desires to
enter a plea of not guilty.
J&y&x
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant AttorneysGeneral
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairmen. Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3248