# The Attorney General of Texas August 8, 1979 MARKWHITE AttorneyGeneral

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41, N. Tmlh. 6uiu P s4cMm.lx.76sol 61-7 Honorable George N. Rodriguez, Jr. Bl Paso County Attorney Opinion No. MW-41 City-County Building, Room 201 El Paso, Texas 79901 Dear Mr. Rodriguez: Re: Application of article 32A.02, V.A.C.C.P., to traffic citations

You have asked when a criminal action commences under the Texas Speedy Trial Act, article 32A.02, Code Crim. Proc., in the case of a traffic violation. Specifically, you have’asked’if the thirty day period begins to run when the citation is issued, or when a formal complaint is filed in municipal court.Article 32A.02, section 2(a), provides:

_..,. ._- .~ Except as ‘provided in Subsections fb) and fc) of this s-+iob acriminal action commences for purposes of ._ ~. .:.

_ :. this.. article when: an ~Jndictment, informatig or.

~complaikagaiust the defendant ,is:filed,:in court, unless price to the fiing the defendant-its either detained in custody or released on bail or personal bon~~.to,answer -for the same offense or any other offense arising out of the same trankction, in which event .the arimhml action commences when he is arrested The answer to yourquestion will depend on whether the peace officer’s stop of a traffic offender and issuance of a citation constitutes a detention in custody or a release on bail or personal bond. Various sections of article 6TOld,V.T.C.S., indicate the effect **of** a stop for a traffic violation. When a motorist is stopped for a traffic violation, the stop is characterized by the statute as an arrest. V.T.C.S. art 6701d, S148. Even though it is normally for only a brief period of time, the driver is detained in custody. V.T.C.S. art. 67Old, 6148(d) (when the driver files a promise to appear, the officer “shall forthwith release the person-arrested from custody”); Delaware v. Prouse, 99 S. Ct. 139lf1979) (a stop of an automobile andbrief detention of its occupants is a seizure within the meaning of the 4th and 14th Amendments); 6 Tex. Jur.2d Arrest SS1andi

Honorable George N. Rodriguez, Jr. - Page Two (Mw-41)

20; cf. **Newberry**‘v. State, 552 S.W.2d 457, 461 (Tex. Crim. App. 1977) (after a traffic viohZ& was stopped he was not free to leave).~ ! A traffic offender may be permitted to leave on signing a promise to appear. V.T.C.S. art. 67Old,S148. If the arrest is for speeding, it is generally mandatory that the arrested person be released on the signing of the promise to appear. & In many respects the promise to appear is the functional equivalent of a personal bond. art. 6701d, S148fi Code Crim. Proc. art. 17.04. Compare V.T.C.S. : We believe tha motorist who is stopped and ticketed for a traffic offense has been arrested and detained in custody. This reading is Eonsistent with the apparent intent **of** the statute. The Act is a remedial statute. and it should be &en a liberal construction to effe&its purpc&. City of Mason~v.-West’Texas~Utnities C& 237 S.W.2d 273 (Tex. 195D. The Act is designed to impose time limitations on the state as soon as the defendant enters the crimfnal j&i&system to answer for an offense. In the case **of** a traffic offense punishable by flne only, the defendant enters the system when he is arrested, and ‘the state is ‘requiredtibe ready for trial within 30 days **of** thattime. Of courSe the time at which ‘the. state’is required to be ready ~maybe .extended by any’ one of the ten iall sec. 4flO)(providing for reasonable delay ~i?iE$g2mY’~~i~i~~ We also note that beginning September l, 1979, the 30 day period.wiD be extended to 60 days. Acts 1979,66th Leg., ch. 3, at 4. SUMMARY m.Speedy Trtal AC&-article 32A.02,. Code Grim. Proc., requires U&the stat&beready to try a traffic offensepunishable by fiie . ‘-onlywithin 3Odays <of -the time the defendant -isestoppedandissued ‘.‘-& ~,,ket;$‘-‘:!:. ;~i :, .’

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Attorney General **of**Texas JOHNW.FAINTER,JR. First Assiitant Attorney General TEDL. HARTLEY Executive Assistant Attorney General Prepared by C. Robert Heath and Charles Campbell Assistant Attorneys GeneralHonorable G-e N. Rodriguez, Jr. - Page Three (m-41)

APPROVED: OPINIONCOMMITTEE C. Robert Heath, Chairman David B. Brooks TomBulling& Charles Campbell William G Reid