Mamh 29,1988

Honorable Randy Sikes Brown County Attorney Courthouse Brownwood, Texas 76801 Opinion No. JR-876

Re: Effect of 1985 amendment to article 27.14, Code ofCriminal Procedure, on traffic cases in justice of the peace courts (RQ-1115)

**Dear** Mr. Sikes:

The questions you ask relate to the use of a written notice ofa traffic violation serving as acomplaint in justice court under the conditions set forth in article 27.14 of the Code of Criminal Procedure. Article 27.14 provides as follows:

(a)Aplea of 'guilty' oraplea of 'nolo contendere' in a misdemeanor case may be made either by the defendant orhis counsel inopen court; in such case, the defendant orhis 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.
(b)Adefendant charged with amisdemeanor forwhich the maximum possible punishment isby fine only may, in lieu of the method provided inSubsection (a)of this article, mail to the court aplea of 'guilty' or a plea of 'nolo contendere' and awaiver of jury trial. The defendant may also request in writing that the court notify the defendant, at the address stated in the request, of the amount ofan appeal bond that the court will approve. Ifthe court receives aplea and waiver before the time the defendant is scheduled to appear in court, the court shall dispose of the case without requiring acourt appearance by the defendant. The court shall notify the

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defendant by certified mail, return receipt requested, of the amount of any fine assessed inthe case and, ifrequested by the defendant, the amount of anappeal bond that the court will approve. The defendant shall pay any fine assessed or give an appeal bond in the amount stated in the notice before the 31st day after receiving the notice.
(c)Inamisdemeanor case arisina out of
amovina traffic violation for which the

onlv. navment of a fine. or an amount accented bv the court constitutes a findinq ofauiltv inonen court. as thouah aolea of nolo contendere had been entered bv the defendant.
(d)Ifwritten notice of atraffic violation forwhich maximum possible punishment isby fine only or **of** aviolation relating to the manner, time, and place of parking has been prepared, delivered, and filed with the court and a legible duplicate copy has been given to the defendant, the dunlicate G **DV**swves as acomolaint to which the dzfendant mav olead 'auiltv.' 'not auiltv.'
or 'nolo contendere.' If the defendant pleads 'not auiltv' to the offense. a comlaint shall be filed that conforms to the reouirements of Article 45.01, Code of Criminal Procedure, 1965, and that complaint
serves asanoriginal complaint. A defendant may waive the filing of asworn complaint and elect that the prosecution proceed on the written notice of the charged offense ifthe defendant agrees in writing with the prosecution, signs the agreement, and files it with the court. (Emphasis added.)

Your concern appears tobe directed to the use of the duplicate copy of the notice asa complaint in justice court following the entry ofa plea of guilty or nolo contendere to a moving traffic violation pursuant to section (d)asamended by Senate Bill 392, Acts 1985, 69th Leg., ch. 87, at 514, effective September 1, 1985.

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fi You ask the following questions:

1) Does S.B. 392 apply toJustice Courts oronly Municipal Courts?
2) If S.B. 392 applies to Justice Courts, are any requirements necessary to charge anoffense?

3) Must the **ticket** be sworn inorder to beused asacomplaint?

4) What language is necessary on the ticket for ittobeavalid complaint?

5) Should the ticket include any of the following:

a) inthe name and by the authority of the State
b) Before me the undersigned authority on this day personally appeared your affiant who after being byme first duly
sworn says upon his oath that hehas good reason tobelieve and does believe

cl did then and there operate and drive a vehicle upon a public street orhighway ofTexas

d) the unreasonable, imprudent and unlawful speed

e) which was then and there a speed greater than was reasonable and prudent under the conditions then existing

f) the prima facie reasonable and prudent speed was
9) against the peace and dignity of the State
6) Will habitual violator cases have to **be**dismissed inanadministrative hearing on the argument that aconviction cannot be used because of a lack of complaint or a fundamentally defective complaint due to the

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use of the ticket asacomplaint without any charging material?

7) If the statute applies to Justice Courts and acomplaint needs tobemade on a plea of not guilty, should the complaints comply with article 45.01 or 45.15?

Areview of the history of instruments charging violations incriminal cases inthis state isrelevant to adetermination of the issues you have presented.
Prior to its amendment onNovember 5, 1985, section 12of article Vof the Texas Constitution provided:

Sec. 12. All judges of courts of this State, by virtue of their office, be conservators of the peace throughout the State. The style of allwrits and process shall be, 'The State ofTexas.' All prosecutions shall be carried on inthe name and byauthority of the State of Texas, and shall conclude: 'Against the peace and dignity of the State.'

After the adoption of the 1985 amendment, section 12 ofarticle Vstates as follows:

Judges tobe conservators of the peace; indictments and informations.
(a)All judges of courts of this State, byvirtue of their office, are conservators of the peace throughout the State.
(b)An indictment isawritten instrument presented to acourt byagrand jury charging a person with the commission of an offense. An information * written instrument presented to a ?ouk by an attorney for the State charging a person with the commission of an offense. The practice and procedures relating to the use of indictments and informations, including their contents, amendment, sufficiency, and requisites, are as provided by law. The presentment of an indictment or information to acourt invests the court with jurisdiction of the cause.

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,- The bill analysis to S.J.R. 16 proposing the 1985

amendment contains the following comment:

Byomitting the Constitutional language inan indictment, this bill allows for fewer technical conviction reversals if it has been mistakenly omitted from an indictment
or information. In addition, the language of an indictment, and other requisites u be amndable bv the leaislature as the needs of tZe criminal justice system change. Thereby speeding the trial process and avoiding reversals of cases formere technicalities that do not affect the substantive rights of defendants. (Emphasis added.)

Bill Analysis to S.J.R. No. 16, 69th Leg. (1985), on file inLegislative Reference Library.

The 1985 amendment omitted the requirement "all prosecutions shall be carried on inthe name and by the authority of the State ofTexas, and shall conclude, 'against the peace and dignity of the State'." (Emphasis added.)

The courts prior to the 1985 amendment had held that ifthe foregoing beginning and conclusion were omitted the charging instrument was void. Daniels v. State, 573 S.W.2d 21 (Tex. Crim. App. 1978). The courts reasoned that such omissions were violative of a constitutional mandate and resulted inavoid charging instrument. It was held that such a fundamentally defective instrument failed to invoke the jurisdiction of the court. Bruce v. State, 622 S.W.2d 624 (Tex. APP. -Amarillo 1981, no writ). The omission of these requirements inthe 1985 amendment obviated the constitutional recuirement that such language appear in all instruments charging a criminal offense.

InWilson v. State, 224 S.W.2d 234, 237 (1949) the Court of Criminal Appeals stated, "The jurisdiction of the court is amatter **of** statutory enactment and authority must be found not only to hear the matter, but also to dispose of the same." The 1985 amendment to section 12of article V, clearly provides the practice and procedure relating to indictments and information and the sufficiencyof their contents are as provided by law. While complaints were not mentioned, absent a constitutional mandate to the contrary, the practice and procedure

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relating to complaints and the sufficiency of their contents is amatter for the legislature. In article 27.,14section (d)of the Code ofCriminal Procedure, the legislature has provided for a limited use of the notice of the violation to serve as a complaint in pleas of guilty and nolo contendere intraffic and parking violations where themaximum possible punishment isby fine only. Article 6701d, section 148, V.T.C.S., sets forth the requirements for notices intraffic violations, as follows:
(a)Whenever aperson isarrested for any

violation of this Act punishable as amisdemeanor, and such person isnot immediately taken before amagistrate as hereinbefore required, the arrestina officer shall nrepare in dUDliC&e written notice to aooear incourt containina the name and address of such nerson, the license number of his vehicle. if any, the offense charaed. and the time and nlace when and where such person shall aonear in court. (Emphasis added.)

Inresponse to your questions numbered "2" through t15,t' the requisites of acomplaint under the limited conditions provided insection (d)ofarticle 27.14 of the Code of Criminal Procedure are the requirements for a notice set forth inarticle 6701d, section 148, V.T.C.S.

Your first question relative towhether this provision applies to justice courts appears to have been prompted by the requirement that acomplaint be filed conforming to article 45.01, Code ofCriminal Procedure, inthe event adefendant enters aplea of not guilty and the fact that prior to amendment, section (d)of article 24.17 applied only to parking offenses, violations which commonly occur within the corporate limits of a city. Article 45.01 sets forth the requirements for a complaint inthe corporation court. Section (d) inaddressing the' circumstances inwhich the notice of violation might be used asacomplaint did not limit itsuse to the corporation court. No other legislation at that or the subsequent 70th Legislature addressed this question. Thus, it isthe latest statute of enactment. See Gov't Code 5311.025(a). InValleio v. State, 408 S.W.2d 113 (Tex. Crim. App. 1966), the court found that article 45.17 of the Code of Criminal Procedure, providing that adefendant shall not bedischarged by reason ofan informality in a complaint, applied to the corporation court despite the

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fact that only the justice court was mentioned in the statute. Undoubtedly, the court's rationale in Valleio
was based on the fact that the charging instrument inboth justice and corporation courts isthe complaint. That
same rationale would appear to bemore applicable in the instant case where the legislature has not expressed any intention to limit the procedure outlined forpleas of guilty and nolo contendere to the corporation court. Article 27.14, section (d),Code ofCriminal Procedure, applies toboth justice andmunicipal courts.

Inyour question numbered "611you ask if convictions alleged inahabitual violator case will withstand attack inan administrative hearing where it iscontended "that a conviction cannot beused because ofthe lack ofa complaint orafundamentally defective complaint due to the
use of the ticket asa complaint?" You undoubtedly are making reference to the procedure outlined in section 22 ofarticle 6687(b), V.T.C.S., determine whether a providing for ahearing to recommendation isto bemade to the Director of the Department of Public Safety for suspension of the operator's driver's license for a period of not more than one year. Subsection (b) of section 22 sets forth the circumstances under which a suspension is authorized. One of the conditions under which suspension recommendation is authorized is where th: operator "is ahabitual violator ofthe law," defined in subsection (b)(4) as follows:

The term 'habitual violator' as used herein, shall mean any person with four (4) ormore convictions arising out of different transactions in a consecutive period of twelve (12) months, or seven (7) or more convictions arising out ofdifferent transactions within aperiod oftwenty-four (24) months. (Certain named violations are specifically excluded.)

InTexas DeDartment of Public Safetv v. Casselman, 417 S.W.2d 146 (1967). the Texas Suoreme Court addressed the question of.attacking prior convictions alleged in a section 22, article 6687(b) habitual violator proceeding. In Casselman, the court stated in relevant part as follows:
‘[IIt should be made abundantly

clear that inthis case we are not concerned with criminal penalties but rather with an administrative and

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regulative power vested inthe Texas Department of Public Safety which power has for its purpose the protection of the lives and property of those using the highways. A driver's license isnot suspended for the purpose of visiting additional punishment upon an offender but in order to protect the public against incompetent and careless drivers. . . .' [Texas Deaartment of Public Safetv . Richardson, S.W.2d 128 (Tex. :964)] 384

Cases in which criminal punishments or enhancements of criminal punishment are sought tobe avoided by attacks in courts having criminal jurisdiction are not apposite here. This isnot acriminal case but one to determine whether a party#s privilege todrive amotor vehicle over the highways ofTexas should be suspended inthe interest ofpublic safety. Itmay be that ifa jail sentence were assessed because of the violation ofatraffic safety rule, and
adefendant could show upon the trial that he neither appeared in person nor by attorney, he could secure his release by writ ofhabeas corpus issued by acourt of proper jurisdiction, but such circumstance does not bear upon the issue involved in a driver's license suspension case.

. . . . Although the record supporting a judgment may carry the seeds of infirmity that prove fatal to the judgment when exposed upon a direct attack or in a habeas corpus proceeding, itcannot be said that any and all persons may ignore the judgment before it ispronounced invalid orvoid by proper authority. Inthis case, the County Judge
was not considering a direct attack or conducting ahabeas corpus hearing and was nomore authorized to ianore the iudoments of convictions than would aorison warden be justified indischaraina anrisoner before the iudoment convictina such orisoner had been declared invalid bv a court of

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aetent iurisdiction. There are proper methods and competent tribunals to accomplish the destruction of judgments, but acollateral attack inaproceeding such as this isnot one of them.
Apparently the petitioners here did not take the trouble to contest the charges made against them in the criminal courts but contented themselves with paying comparatively small fines and allowing judgments of conviction to be entered against them. Then, based upon the record thus made or which they allowed to stand, they now seek to make the convenience afforded them a ground **for** attacking the judgments of convictions rendered against them.

. . . .
The abstracts of judgments provided for byArticle 6701d, 5152, are admissible in evidence under the provisions of Article 3731a, V.T.C.S., as they are certificates or reports made by anofficer of this state or agovernmental subdivision thereof in the performance ofthe functions ofhis office. See Texas Deoartment of Public Safetv v. Richardson #suDra, and authorities therein cited. Such abstracts of iudcrments. which
are ouite aenerallv referred to as notices ofconviction, nurnort tobe statements of information disclosed bv the record which the iudae ormaaistrate isrecuired to keeD. Thev constitute orima facie evidence of the contents of a iudoment. However, as we stated inTexas **DeDartUEnt** of Public Safety
v.Miller, Tex., 386 S.W.2d 760.

'Ifthe notice ofaconviction be inaccurate itmay be corrected by the use of properly authenticated copies of the docket of the justice of the peace or the corporation judge as was done in **DeD.?CtmeIIt**of Public Safetv v. Guleke, Tex. Civ. App., 36;n Sit,: 662, no wr. hist. (1963). c the notices or abstracts mav be corrected bv either oartv. But until

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corrective measures are taken. such notices or abstracts are to be accented asevidence of 'the matters stated herein.' (Emphasis added.)

417 S.W.2d at 147.

The use of the duplicate traffic violation notice as acomplaint pursuant to section (d) of article 27.14 of the Code ofCriminal Procedure, cannot be attacked in an administrative proceeding brought inan article 6687(b), V.T.C.S., proceeding to suspend an operators license in a "habitual violator" case. Casselman provides that the abstracts of judgments and notices ofconvictions may be corrected if inaccurate, otherwise they are tobeaccepted
as evidence of the matters stated therein. Itwill be assumed that adirect attack is not made upon the use of such acharging instrument since aconviction can only be had under section (d)where the plea is guilty or nolo contendere. You do not ask nor dowe explore any possible attacks which may bemade upon the conviction inan appeal inthe criminal context or byway ofhabeas corpus. Any such determination would necessarily have tobemade on a case-by-case basis. ?
In your question numbered It7t*you ask if the complaint should comply with article 45.01 or article 45.15 of the Code of Criminal Procedure inthe event the defendant enters a plea of "not guilty." Article 45.01 contains the requirements for acomplaint in corporation court and provides

Proceedings inacorooration court shall be commenced by complaint, which shall begin: 'Inthe name and by authority of the State of Texas*; and shall conclude: 'Against the peace and dignity of the State': and ifthe offense isonly covered by an ordinance, it may also conclude:, 'Contrary to the said ordinance.' The recorder shall charge the jury when requested inwriting bythe defendant orhis attorney. Complaints before such court may be sworn tobefore any officer authorized to administer oaths or before the recorder, clerk of the court, city secretary, city attorney orhis deputy, each ofwhom, for that purpose, shall have power to administer oaths. (Emphasis added.) ?

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Article 45.15 does not relate to the requirements for a complaint. Articles 45.16 and 45.17 of the Code of Criminal Procedure address the matter of the allegations which must appear in a complaint in justice court. Article 45.16 provides as follows:

Upon complaint being made before any iustice of the oeace, orany other officer authorized by law to administer oaths, that
an offense has been committed inthe county which a justice of the peace has jurisdiction finally to try, the justice or other officer shall reduce the same towriting and cause the same tobe signed and sworn to by the complainant. It shall beduly attested by the officer before whom itwas made: and when made before such justice, or when returned to him made before any other officer, the same shall be filed by him. (Emphasis added.)
Article 45.17 states as follows:

Such complaint shall state:

1. The name of the accused, if known, and if unknown, shall describe him as accurately aspracticable:

2. The offense with which he ischarged, inplain and intelligible words;

3. That the offense was committed inthe county inwhich the complaint ismade; and

4. Itmust show, from the date of the offense stated therein, that the offense is not barred by limitation.

P Article 27.14, section (d), Code of Criminal

Procedure, is unambiguous in its requirement that the complaint conform to the requirements ofarticle 45.01. It should be noted that, despite the fact that the 1985 amendment to section 12of article Vofthe constitution omitted the requirement that all prosecutions contain the formal beginning and conclusion, article 45.01 has not been amended to remove these requirements. While section (d)of article 27.14 states that upon aplea of "not guilty" acomplaint conforming toarticle 45.01 shall be filed, asafer practice in the justice court would be to

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exercise care that the complaint meets the requirements of the three statutes relating to the requisites of complaints inboth justice and corporation courts.
Section (d)of article 27.14 of the Code of Criminal Procedure (asamended by S.B. 392, Acts 1985, 69th Leg., ch. 87, at 514, effective September 1, 1985), applies to justice and corporation courts. When the conditions imposed by section (d) for use of aduplicate of the notice asacomplaint are met, such notice shall conform to the requirements of section 148 of article 6701d, V.T.C.S. Prior convictions alleged inahabitual traffic violator administrative proceeding held pursuant to section 22 of article 6687(b), V.T.C.S., cannot be attacked on the basis that such convictions are based on a traffic violation notice which serves as a complaint pursuant to section (d) ofarticle 27.14. While section (d)of article 27.14 states that upon aplea of "not guilty" acomplaint shall be filed conforming to article 45.01, asafer practice in the justice court would be to exercise care that the complaint conforms to all of the requirements set forth inarticles 45.01, 45.16 and 45.17 of the Code ofCriminal Procedure.

SUMMARY
Section (d)of article 27.14 of the Code ofCriminal Procedure (as amended by S.B. 392, Acts 1985, 69th Leg., ch. 87, at 514, effective September 1, 1985), applies to justice and corporation courts. When the conditions imposed by section (d) for use of the notice as acomplaint are met, such notice shall conform to the requirements of section 148 of article 6701d, V.T.C.S. Prior convictions alleged in a habitual traffic violator administrative proceeding held pursuant to section 22 of article 6687(b), V.T.C.S., cannot beattacked onthe basis that such convictions are based on a traffic violation notice which serves as a complaint pursuant to section (d)of article 27.14. While section (d)of article 27.14 states that upon aplea of "not guilty" a complaint shall be filed conforming to article 45.01, a safer practice in the justice court would be to exercise care that

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the complaint conforms to all of the requirements set forth in articles 45.01, 45.16 and 45.17 of the Code of Criminal Procedure.

JIM MATTOX Attorney General ofTexas

MARYKELLER First Assistant Attorney General

LOU MCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared byTom G.Davis Assistant Attorney General

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