OWlCE OF THE ATTORNEY GENEML STATE OF TEXAS

JOHN CORNYN

December 15,200O

The Honorable Senfronia Thompson Chair, Committee on Judicial Affairs Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 Opinion No. JC-03 17 Re: Whether the addition ofcertain protest words to atraffic citation constitutes avalid promise to appear in court (RQ-0270-JC) Dear Representative Thompson: In 1999, this office opined on certain general principles of contract law with respect to the potential effect of certain protest words written under a signature on an Internal Revenue Service form. See Tex. Att’y Gen. Op. No. JC-0153 (1999). The constituent for whom you inquired on that occasion now wishes to know the effect ofthe same or similar formulae ofprotest on atraffic ticket.’ Your constituent has, in our view, misunderstood the distinction between contract law, which governs the relations ofparticular parties who have come to an agreement, and public law, which governs all persons within that law’s jurisdiction. While itmatters for the purpose ofcontract law whether ornot two parties have agreed tobe bound to certain conditions in abargain, it is of no consequence whether any individual agrees to be bound by the traffic regulations orpenal laws of the State of Texas. So long as such aperson is in Texas, he or she isbound by those laws. See United States v.Masat, 948 F.2d 923,934 (5th Cir. 1991) (rejecting argument that court lacksjurisdiction over one who declares himself “non-citizen,” “non-resident” and “freeman”). Your constituent’s legal obligation to appear in court does not require his agreement. His choices in the matter are simple. When he is stopped, the police officer has the discretion to issue him aticket ortake him into custody. Ifthe police officer issues the ticket, your constituent can sign it or be arrested. On the indicated court date he can appear in court, or he can subject himself to arrest. He cannot, merely by writing “forced to sign under threat, duress and coercion”’ on his traffic ticket, avoid the consequences of the traffic laws.

‘See Letter from Honorable Senfronia Thompson, Chair, Committee on Judicial Affairs, Texas House of Representatives, toHonorable JohnComyn, TexasAttorney General (Aug. 17,200O)(onfilewithOpinion Committee).

‘Letter fromCharlesLouisBailey III,toHonorable SenfroniaThompson, Chair,Committee onJudicialAffairs, Texas House ofRepresentatives (June 6,200O) (ontile withOpinion Committee) [hereinafter Charles Louis Bailey III (continued...)The Honorable Senfionia Thompson - Page 2 (JC-0317)

The statutes in question here are to be found in subchapter A, chapter 543 of the Transportation Code. Pursuant to section 543.001, a peace officer may arrest without warrant a person found committing any of a variety of traffic violations? See TEX. TRANSP. CODE ANN. 5 543.001 (Vernon 1999). The police officer then either takes the arrestee “immediately before amagistrate,” id. 4 543.002, or issues “a written notice to appear in court,” id. 5 543.003 (Vernon Supp. 2000). Such anotice is to be issued if“the offense charged is speeding or aviolation ofthe open container law;
. and the person makes awritten promise to appear in court as provided by Section 543.005.” Id. 5 543.004. “To secure release, the person arrested must make a written promise to appear in court by signing the written notice prepared by the arresting officer. The arresting officer shall retain the paper or electronic original ofthe notice and deliver the copy ofthe notice to the person arrested. The officer shall then promptly release the person from custody.” Id. 5 543.005. The appearance date on the notice must be at least ten days later “unless the person arrested demands anearlier hearing.” Id. 5543.006 (Vernon 1999). Awill%1violation ofthe written promise to appear is amisdemeanor. See id. 5 543.009. The import of this statutory scheme isclear. When apoliceman stops adriver for amoving violation, he writes aticket. The driver signs the ticket, thereby promising to appear in court. Ifthe driver does not sign the ticket, he isnot released. Ifthe driver signs the ticket and does not appear in court, he is subject to arrest. Your constituent, however, appears to believe that he may escape the consequences of chapter 543 of the Transportation Code. He has asked you:

By placing these words after one’s signature, “forced to sign under threat, duress and coercion,” when no “meeting of the minds has occurred,” and the ticketed party has no intentions of making a court appearance, isthe signatory relieved ofhis promise to appear in court ifno adhesion contract exists?4 Your constituent has noted the conclusion of Attorney General Opinion JC-0153 that such a form ofwords, when appended to acontract, “may indicate that the person signing has not agreed to the terms of the document, and consequently that there has been no ‘meeting of the minds’ that is necessary to form abinding agreement.” Tex. Att’y Gen. Op. No. JC-0153 (1999) at 4. He then

z(...continued) Letter].

‘Thequestionofwhetheranarrest foramisdemeanorpunishable onlybyafineviolatestheFourth Amendment ofthe Constitution isatpresent before theUnited States Supreme Court inAtwater v. City ofLago Vista, 195F.3d 242 (5th Cir. 1999), cert. granted, 120S.Q. 2715 (2000) (No. 99-1408).

‘Charles Louis Bailey III Letter, supra note 2,at 1.The Honorable Senfronia Thompson - Page 3 (X-0317)

makes the assumption that atraffic ticket is acontract. His implicit argument is that the contract is void, because it is adhesive and he has not truly agreed to it. We note, as apreliminary matter, that even were we to accept the notion that atraffic stop is abargaining session in which the writing of aticket is an offer and the signing of the ticket an acceptance, the principles ofcontract law would notprovide your constituent with the reliefhe seeks, Itishombook law that “[a] person will not be permitted to accept the beneficial part of atransaction and repudiate the disadvantageous part. In other words, one who retains benefits under atransaction cannot avoid its obligations, and is estopped to take aposition inconsistent therewith. Similarly, one cannot accept and reject the same instrument, or, having availed himself of the benefits conveyed by a part of an instrument, reject its other provisions,” 34 TEX. JUR. 3~ Esfoppel 3 13 (1984). Transparently, amotorist who signs aticket and drives away rather than spending the night inpolice custody has availed himself of what areasonable person would regard as avery substantial benefit. He cannot then be heard to say that he has no intention to appear in court. The traffic laws of this state are, however, no more amatter of contract than are its penal laws. They govern all those within the jurisdiction of Texas; they cannot be evaded at whim by a verbal formula. Your correspondent’s apparent notion that his relation to our laws is purely contractual, and as such may be unilaterally abrogated by him, has no basis in law. See Coyle v. Sfate, 775 S.W.2d 843, 847 (Tex. App.-Dallas 1989, no writ) (rejecting argument that defendant “has cancelled all contracts that would require her, inher view, torecognize any authority other than God.“); cf: Barcroft Y.State, 881 S.W.2d 838, 840 (Tex. App.-Tyler 1994, no pet.) (Uniform Commercial Code inapplicable in criminal trial for exceeding speed limit). Having signed atraffic ticket, one is obliged to appear in court. Wilful failure to so appear is a misdemeanor. See TEX. TRANSP. CODEANN. § 543.009 (Vernon 1999). The law does not contemplate that any mental reservations with which one signs, or any form of words one appends to that signature, will have the remotest effect on one’s obligation to appear.The Honorable Senfronia Thompson - Page 4 (JC-0317)

SUMMARY The addition ofprotest words to a signature on atraffic ticket has no effect whatsoever on the obligation of the ticketed party to appear in court.

Attorney General of Texas

ANDY TAYLOR First Assistant Attorney General CLARK KENT ERVIN Deputy Attorney General -General Counsel SUSAN D. GUSKY Chair, Opinion Committee James E. Tourtelott Assistant Attorney General - Opinion Committee