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The Attorney General of Texas 

January 20. 1982 

Ms. Elizabeth 5. Jaadc 

Guadalupe County Attorney 

105-A North Auocin 

Scguin. Texu 78155 

Xr. John T. Xontford 

CrifAfnal oiuricc Actoroey 

Lubbock Couacy Courthouse 

Lubbock, .Texas 79401 

Hr. ?Iauricc S; Pipkin 

Executive Direcco; 

State C-salon on ~Judicial 

c&duct 

211 Rugao Euilding 

P..O. Box 12265 

Austin. Texu 78711 

Opinion No. W-428 

Re: Interpretation of article 

67016, section 143A: Questions 

rel&tlug to “defcaaive driving 

couru” .a alternative to 

court proceedinga 

Dear Ha. Jandc and Heasrs. Moatford and Plp!in: 

You have tcqueated oar opinion on the. queatloaa llated below 

relating to procedurea used by muolcipel~ and jurtice court judges in 

thin l tata ia.~le~oclng thk provisione of the Texee ecatute vhlch 

permits l .pereorr ehrrgcd~ vith”a misdemeinor offense ,related to the 

oper,ation bf i wtor vehicle td -take a “defeimlvc driving couue” or 

.~ “driving ufety ~courua ii~ “Lieu of ptoeecutfon qd further court 

proceedioge l r lsinfrom a the offeore. 

Tlic etacuca 10 quemtioa. l e&on.l43A of l rclile 670ld. V.T.C.S.. 

rud6 as follove: * I 

. 

DISXISSAL O? CERTAIN ltISOMWtON CN4RCW UPON 

COXPLETINC DRIVING SAFETY CGURSL. . 

sac. ‘14% (a) Nhen a parsoo ie charged 

vith a dideseenor offense under thie Act. other 

then a violetion of Sactioo SO or Sl. emitted 

while opericiag a motor vchlcle. the court: 

(1) in lta dfscrecion Roy defer proceedings 

and ellow the person 90 days to prwenc evidence 
CtwC. aubaaquanc to cha .ll.g.d act. th. parson 

has .succcsafully completed a defensive driver’s 

couraa l pprovad by the Texss Dapartmant of Public 

Safety or other driving safety course approved by 

cha court; or 

(2) shall defer proceedings and ellav the 

parson 90 days to present written evidence that, 

subsequent to chc alleged act, the person haa 

successfully completed a driving safety course 

approved by the court. If: 

(A) the parson presents to the court an oral 

request or written aotlon to take a-course: 

(5) ‘the peiaoa has a valid Texas drlvar’a 

license or permit; end 

(Cl the peraon’8 drlviog record as 

malnrsined by the Texas Dapartwnt of Public 

Safety doea not Indicate succeaeful colnpJition of 

,a driving safety *course under this ~acibdlvision 

within the cvo ycers iasnadietely preceding the 

date of the alleged offense. 

(b) When the person coinplles with cha 

provisions of Subeecrloo (a) of this section and 

zhe evidence presented is accepted by the court. 

the court shall dismiss the charge. 

.Uhcn a charge Is d&seed under this UCC~W. the 

charge may not be part of cbc detson’s ‘driving 

record dr used for aiy purpose. but the court 

ihall report the fut that l p er 000 hu 

eucceaafully completed a driving ufety course and 

the dote of completion to the Texas Oepartaent of 

Pal, I Lc Safety.. ~for inclusion in the parmon’i 

drivt”$: record. The court shall note in it0 

rcwct ~dmtbar tbC course vas taken under the 

pmccdurc provided ~by Subdfviaion (2) of 

S~ub~ccha (aj of this seccioti for the purpose of 

providing information necessary to determine 

l lWbility to teke l subsequent edurse under that 

subdlvislon. 

The questions Presented by you ralaclng co the interpretaclon and 

ioplamcntation of this statute art as follows: 

P. 1456 
nr. Elizabeth C. .Inndt 

Iir. John T. Iioncford 

Hr. Haurice S. Pipkin 

Pa&e 3 (mr-428) 

1. It a court (municipal or juarlca court) 

re;uircd Co give a go-day deferral for l defendrnc 

to Cake a dafensivc driver’s course. es provided 

In section 143A(a)(2), ac any time that a moc,lon 

is uada by che.dafendent to cake such a course 

_ (assuming thac.tha dafendanc is aliglble)? 

2. -At uhsc polnc. if ray. ~ln .a .mlsdemeanor 

traffic offense proceeding could the judge refuse 

a motion to allow the defendant to take a 

defensive drlvar’s- Course and hsve hit citation 

dlsmlssed under article 6701d. section 143A(a)(2)? 

.3. Hay a judge require a dcfandsnt to cntar 

s plea of guilty or nolo contendere before the 

judge will allou the defendant to cake s defenslva 

driver’s court under either subsection 1 oi 2? 

4. Usy s judge require the defendant to 

pieseut s copy of the Texas Deparcuent of Public 

Safety’s spproval of the defensive driver’s course 

before the judge yill l llov .the indivldusl ‘to 

register for s particular course? 

5. ‘Hay the judge require e defendant to 

provide to the court a notarized svorn statment 

actestiag CO the fact Chet the dafendau$ haa not 

coslpleced a defensive, driving course vichln the 

put tvo years for the purpose of hsving a 

cltstlon dismlssedt ., 

6. What steps.msy a judge take efrer the 

ainety-day period, vhlch the defendsnc vi8 giveo 

-to complete a defensive driving course. if the 

defendsnt ‘did oat then supply the court vith 

vritten evidence that he lo facts did complete the 

cours.e? 

7. 18 .lt uaechiul for s judge co sdvfse a 

party vho requests tnfonrtlon on ihe scste’s 

. dcfcns(vc dr,iving lsv so to the steps necuury co 

comply vlth l ectlon 143AT 

R. . . Liay a judge require the dafendanc to 

perronally sppaar in hit court to sstisfy my of 

the raqulrananCa set out 1” this act? . 

SpecIficaLly. l fear a defendant hat taken the, 

dafanslvc drlvar’a course. may a judge damand the 

-./ 

. 1 (rs’) 
prcscnrac1on of rile Co”rBf complctlcn certificate 

In pcrcon or may it be mailed to the court vithln 

tbd required clme limit? 

This office hcs In an earlier opinion determined that the statute 

In qucction. scctlon 143A of article 6701d. V.T.C.S.. lm 

conscltutlonal l d that It does not impcrmicslbly lnfrlngc on the 

dlccrctlon of c judge before whom a misdemcsnor traffic offense haa 

been brought. See Attorney Central Opinion W-185 (1980). In that 

oplnlon. Ye stated: 

(Ilt lc well established that the ltglslaturc 

my. glut judges rcaponslbilltlcs which do not 

require the cxcrcisc of judlclal discretion. See 

JamsKIn v. Garrett, 69 S.U.Zd 51; (Tcx. Clv. G. 

-. Tcxarkmic 1934. -wit rcf’d); Koll v. State. 157 

‘,‘$U.2d..377 (Tax;‘-Crla. App. - 1941). . A judge may 

be assigned sialettrlal duties. vhlch a& duties 

prcccrlbcd and defined vlth such precision as to 

lcavc nothing..rp: tbc l xcrciee bf dlccrctloa or 

jtdgment; Jmoiglo~ V. Garrett. M. Once the 

defendant complies vi,@ the three cond5tidas under 

~sactlon l&i(a)(2)..- we btllevc the court’ has a 

~ministc.rial duty-to dismiss the charge. 

Ulth rcgsrd to your ,flrst question.. dcferrdl of 6 court’n 

proceedings under l tc tio n. 143A(a)(2) 1s mandatory. and the Q&day 

.pcrlod should run fron the date the dtfeadanr’s written or oral motion 

lr~granted; .Seccioa 143A(a)(2) Lo specific on thlr point. 

-Your s&and questi& addresser the tiarc llolt~. if any. within 

which a defendant can elect to tokc the dcfcnslvc driver’s course. 

The stpk&~-vas~: intended by the legislature’ to provide an 

cltcrneti~e tq the procecutlon and .‘trial of 8isdcmcanor trcffic 

offcares. ~e~,ksptloa of :the roektlng l ct l teted: ,“[aln Act relating 

to a. drivlnp .qofety eoutac l e ‘aa‘ altcmctlvc to prosecution for 

certala traffic offenses....” Aete 1979. 66th kg., chi 610 at 1359. 

It is clear from the rtctute, thst once a prrson 16 “charSed” with the 

offence. 

“def l r 

Chc court uy or. shall (dcpendlng~ on the iircuastances) 

proceedings” to l now a. defend-t to conplate the courcc and 

thereby halt further court pioeecdlngs.. We belfeve, haueverr that the 

logicsl conctructlon of the ccatute fm thrf once the dcfcndant or his 

eounrel has announced thct’hc is ready for trial, and once. the trial 

(before the court or before a jury) has cownced. the option under 

section 143A to take the driving course lo no lohgcr available to the 

defendant, and the court my properly refute l srotlon by the ‘defendant 

to take the .dcfcnslvo drivcr’c course. By going to trial. the 

p. 1458 
Mm. Ellsobeth C. Jsndt 

Mr. John 1. flontford 

Hr. Maurice s. Plpkin 

Page 5 (tlu-4.28) 

defendant hqe chosen to forego the defensive driving coutee se en 

eltcrnetive means to dlepoee of the charge brought against him. 

In answer to your third question. it would be Improper for e 

judge to require a defendant to enter e plee of guilty or nolo 

contendere before the defendant le elloved to take the dcfeneivc 

driver’s ooursc. In cnectlng section 143A, the lagielarurc clearly 

established the completion of a defensive driver’s course as en 

alternative to court prosecution for minor traffic offenses. The 

cxpllclt language of the statute la that the court “shell dofcr 

proceedings” (section 143A(s)(Z)). It vould .bc a violation of e 

defendent’s constitutlonel rights. es well as prlvllcgcs grented by 

the legislature under this etetute. for a judge to require e defcndent 

to enter l uy plea In exchange for exercising thc’optlon prescribed In 

section 143A(c)(Z). The l tetutc cleerly mskcs the defendant’s 

cxcrclee of ‘the section 143A(c)(Z) option en l ltcrn~tlvc to furthcr 

court proceedings end clininetes the necessity of entering 3 plea es 

a prccocditlon. Further, the court can never force l ny plce co be 

entered by a defendant; if no plea Is entered, the court must enter a 

not. gullty plee. Tcx. Code Crln. Proc. art. 27.16(a). 

In anever to your fourth question, UC hevc earlier eoncluded.thet 

the texes Department of Public Safety, hcrclneftcr referred to ee.the 

DPS. hee authority tc? llccnec all driver trelnlng l chwle, including 

those that provide the defensive driver’s course +thorixcd by section 

143A. kc Attorney Ccncrel .Oplnion W-16 (1979). Yhle question asks 

vhcthcr~ defendant exercising hie option. lue l burden of proving 

bcforeheud thet the dcfcneivc drlver’s- courie to be taken under 

ecctlon 143A hes bccn~ “epproved” by thc~ DPS. 

The atetutc trenefcrs no .euch burden to the defendent. In 

Attorney General Opinion t¶U-18s (1980) WC Interpreted the follwing 

words in ecc~lon 143A(b): “...and the evidence preecnted 1s l cceptcd 

by the court.” WC stated there: ‘~ 

. 

You suggest’ that this provlelon refer0 to common 

- law rules of cvldcncc and meane that the judge 

muet edoit rhe evidence prcecnced by l dcfcndent 

unless there 1s en objection to it., llcmcver , 

l cctlon 143A(b) uece the t&cm ‘ecceptid’ rethcr 

._ then ‘admitted. lforcovcr. since ~wctloa 

143A(e) (2). l pclle out the kind of evidence which 

dcfcndent must prcscnt. the judge need not rule on 

~rclevency. He need only dstctmlnc vhethcr the 

cvidcnce conform to the rcqulrcnentc of section 

143A(a) (2). We believe the language you Inquire 

l bout contempletce that the judge-will cveluetc 

the evidence presented by the defendent that he 
has successfully completed en epproved defensive 

driving toursc end accept It if in fact it 

cornpIles vith the statutory rcquircmente. 

Thus. following our prior rceeonlng. WC conclude that section 

143~ does not place any effirmetive burden of proof on the defendant 

to present to the court proof of completion of the course in J 

specific fora. such se vrltten proof from the DPS of its approval of 

the course taken. Defensive driving schools customarily provide a 

certlflutc of completion to persons uho -have succtssfully completed 

the course. A judge. should evaluate the evidence Of a completed 

course presented by defendants on a case-by-case basis. The statute 

dote not provide for a judge’s prior approval of the course to be 

taken. 

In ansvcr to your fifth question , we similarly find no language 

in scccion 143A which would permit a judge to speclflcelly reaulrc 

submission of e noterlrcd svorn’statement attesting to the fecc chat 

the .defendent has not completed a driving safety couree within, the 

prior tvo-ycer period as a precondition to dismissal of chergee. 

Subedctlona~ (A), (B) and (C) of section 143A(s)(Z) recite the three 

fnrms of “written cvldcncc”~vhich the defendant must present to prove 

compliance with the statute. The judge must evaluate on a 

case-by-cast basis the evidence presented by the d+fendant chat he has 

complied vlch subsections (A), (lb) and (C) of the statute. 

As co question six. the judge mey take a number of customary 

acciona if the defendant falls to complete the course within the 

go-day period and falls-.to presetit such proof to the court. These 

Include setting the meter for.trlal, acceptance and filing of failure 

to iippcer chergce. Issuing an .arreet uerrant. or other actions 

permitted by lav. as If’ the defendant had never elected to take the 

defensive dtlvcr’r course under section 143A. 

. . . . 

AR .‘to quentlon seven. It ,would not be a ‘vloletiori of judicial 

ethics’ for e judge to advise a defendant of his option to take the 

driving nafcty course. The right .to take the course has been granted 

by the lcglrfocurc to defendants, In aledc.mcenor traffic ceses. end it 

Gould. not be uurthlcsl for a jud,gc ,to advise a defendant of the 

spcclflc stcpe ncccse~ty to comply with the statute. 

. . ‘. . 

.Uith regard to question eight . tic find no 1IWIgUAge in SeCtiOn 

143A .uhleh uourd permit a. judge to requite that a dcfendnnt bc 

physically present la his court pcteonelly to present the “written 

l vldcncc” of comp)iencc vlth subecctlone (A), (B) and (C). Under 

currcnC etetutcs and ptsctlcc. a defendant can dispoee of e 

misdemeanor traffic citation without ever personally l ppeerlng in 

court. A-defendant can enter a ples’by mall ot’through his ettorney. 

p. 1460 
Ms. Elizebech C. Jandt 

Mr. John T. f%-itford 

tic. Maurice S. Plpkin 

Page 7 (ml-426) 

see. Ttxsfi Code of Criminal Proctdurc. articles 27.14 and 27.16: the 

Grt can set.an appemmce bond aa vcll as an appeal bond without the 

defendant’s presence, article 27.14(bj; and the defendant can file s 

notice of appeal for trisl de novo without personally appearing ln 

court. article 44.13 et. seq. See also Attorney General Opir.lon 

H-1203 (1978) (dlscu,sslng articles 33.03 and 33.64, Tex. Code Grim. 

Proc.. the latter of which petnice certain criels in misdemeanor cases 

in the absence of a defendant). 

These stetuteq dawnstrace a policy by the legislature to permit 

the disposal of minor miadcmeenor traffic offense cases lo the absence 

of rhe defendant, vho Is permitted by these 8tscutes to appear 

personally or by counsel end co conduct some or all of the case by 

mall, without the inconv nience of being forced to drive hundreds of 

miles across the state I o be present during varlou8 6tares of his 

proceedfng. 

Similarly. ve conclude that section 14% does not compel nor 

authorize a .judge co require the presence of the defendant to, “prove 

up” hie coipllance with the three requlremeat~ listed In section 

14%(a) (2). “Written evidence” la sufficient under the statute when 

the defensive driving ~completloa certificate la presented by the 

defendant by mail. 

SUMMARY 

1. A, judge must pet-air a defendant ~to take 

the defensive drlver’s~ course in every ease’vhere 

e motion to take the course Is properly -de end 

where the defendant 1s l ~lglble for the courae. 

2. The defendant msy exercise his right to 

elect to trke the defensive dtlver’a course at any 

time prior to commencement of hla trial on the 

ehergea brought. If he bee not done eo. the right 

to take the driving course l e an alternative to 

court proceedings Is no longer available to him. 

3. A, judge mey not require a defendant to 

enter any plea as’s precondition to ~pernlttlng the 

defendant to elect to take the defensive driver’s 

course under l ectlon 143A(s) (2). 

4. A ,‘judge MY not require e defendent who 

c~ects to take the defensive driver’s course to 

prow CO the court beforchend thee the course he 

tntendu to take bee been approved by the 

Deprrtmcnc of Public Safety. 

p. 1461 
?ra. Elirrbcth C. ,Jnndr 

Mr. John f. Honcfard 

Hr. tl;lurlce S. l’lpkin 

Page 8 (W-WI) 

5. A judge has no specific. authority under 

se6tlon l43A to require submission of a notarized 

svom statement by the defendant atteocfng that he 

has not completed onothcr defensive driver’s 

coume vlthln the prior tvo-year period. 

6. Where a defendant fsils to complete the 

defensive driver’s course und fails to comply vith 

the provisions of #action 143A after being granted 

permission of court, the court mny proceed vlth 

prosecution of the chsrges 6s If the defendant hsd 

never elected to or been permitted to take the 

course. 

7. A judge uy advise a defendant of the 

speclf ic Actions necessary to fulfill the 

requlrcments of l ectioa 143A(a)(2). 

8. Section i13A doea sot permit 4 judge t’o 

f require that a defendant ‘personally appear in 

court to present “vrltten evldeuce” of completion 

of the defensive driver’s coume. 

JOHN-U. FAINTER. JR. 

First Aarl8cant Attorney Central . 

RICHARD i. GRAY III 

Executive Aoristant Attorney Ceneml 

Prepared by Richard W. Mayer 

Asalotlnt Attorney Central 

APPROVED: 

OPINION COtMI~RR 

Surnn I.. Garrison, Chairman 

Rick Cllpln 

Nlchord W. Heyer 

p. 1462