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 

of Criminal 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 of a traffic violation serving as a complaint 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) A plea of 'guilty' or a plea of 'nolo 

contendere' in a misdemeanor case may be 

made either by the defendant or his counsel 

in open court; in such case, the defendant 

or his 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) A defendant charged with a misdemeanor for which the maximum possible punishment 

is by fine only may, in lieu of the method 

provided in Subsection (a) of this article, 

mail to the court a plea of 'guilty' or a 

plea of 'nolo contendere' and a waiver 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 of an appeal bond 

that the court will approve. If the court 

receives a plea and waiver before the time 

the defendant is scheduled to appear in 

court, the court shall dispose of the case 

without requiring a court appearance by the 

defendant. The court shall notify the 

p. 4270 
Honorable Randy Sikes - Page 2 (JR-876) 

defendant by certified mail, return receipt 

requested, of the amount of any fine 

assessed in the case and, if requested by 

the defendant, the amount of an appeal 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) In a misdemeanor case arisina out of 

a movina traffic violation for which the 

onlv. navment of a fine. or an amount 

accented bv the court constitutes a findinq 

of auiltv in onen court. as thouah a olea of 

nolo contendere had been entered bv the 

defendant. 

(d) If written notice of a traffic violation for which maximum possible punishment 

is by fine only or of a violation 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 a comolaint 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 as an original complaint. A defendant may waive the filing of a sworn complaint and elect that the prosecution 

proceed on the written notice of the charged 

offense if the defendant agrees in writing 

with the prosecution, signs the agreement, 

and files it with the court. (Emphasis 

added.) 

Your concern appears to be directed to the use of the 

duplicate copy of the notice as a complaint in justice 

court following the entry of a plea of guilty or nolo 

contendere to a moving traffic violation pursuant to 

section (d) as amended by Senate Bill 392, Acts 1985, 69th 

Leg., ch. 87, at 514, effective September 1, 1985. 

p. 4271 
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Honorable Randy Sikes - Page 3 (JR-876) 

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fi 

You ask the following questions: 

1) Does S.B. 392 apply to Justice Courts 

or only Municipal Courts? 

2) If S.B. 392 applies to Justice 

Courts, are any requirements necessary to 

charge an offense? 

3) Must the ticket be sworn in order to 

be used as a complaint? 

4) What language is necessary on the 

ticket for it to be a valid complaint? 

5) Should the ticket include any of the 

following: 

a) in the name and by the authority 

of the State 

b) Before me the undersigned authority on this day personally appeared your 

affiant who after being by me first duly 

sworn says upon his oath that he has good 

reason to believe and does believe 

cl did then and there operate and 

drive a vehicle upon a public 

street or highway of Texas 

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 in an administrative hearing on 

the argument that a conviction cannot be 

used because of a lack of complaint or a 

fundamentally defective complaint due to the 

p. 4272 
Honorable Randy Sikes- Page 4 Of-876) 

use of the ticket as a complaint without any 

charging material? 

7) If the statute applies to Justice 

Courts and a complaint needs to be made on a 

plea of not guilty, should the complaints 

comply with article 45.01 or 45.15? 

A review of the history of instruments charging 

violations in criminal cases in this state is relevant to 

a determination of the issues you have presented. 

Prior to its amendment on November 5, 1985, section 

12 of article V of 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 all writs and process 

shall be, 'The State of Texas.' All prosecutions shall be carried on in the name and 

by authority 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 

of article V states as follows: 

Judges to be conservators of the peace; 

indictments and informations. 

(a) All judges of courts of this State, 

by virtue of their office, are conservators 

of the peace throughout the State. 

(b) An indictment is a written instrument 

presented to a court by a grand 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 a court invests the court with jurisdiction of the cause. 

p. 4273 
Honorable Randy Sikes - Page 5 (JR-876) 

,- 

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

amendment contains the following comment: 

By omitting the Constitutional language 

in an 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 am ndable bv the leaislature as the needs 

of tZe criminal justice system change. 

Thereby speeding the trial process and 

avoiding reversals of cases for mere 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 

in Legislative Reference Library. 

The 1985 amendment omitted the requirement "all 

prosecutions shall be carried on in the name and by the 

authority of the State of Texas, and shall conclude, 

'against the peace and dignity of the State'." (Emphasis 

added.) 

The courts prior to the 1985 amendment had held that 

if the 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 in a void 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 in the 1985 

amendment obviated the constitutional recuirement that 

such language appear in all instruments charging a 

criminal offense. 

In Wilson v. State, 224 S.W.2d 234, 237 (1949) the 

Court of Criminal Appeals stated, "The jurisdiction of the 

court is a matter 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 12 of 

article V, clearly provides the practice and procedure 

relating to indictments and information and the sufficiency of their contents are as provided by law. While 

complaints were not mentioned, absent a constitutional 

mandate to the contrary, the practice and procedure 

p. 4274 
Honorable Randy Sikes - Page 6 (JR-876) 

relating to complaints and the sufficiency of their 

contents is a matter for the legislature. In article 

27.,14 section (d) of the Code of Criminal 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 in traffic and parking violations where the maximum possible punishment is by fine 

only. Article 6701d, section 148, V.T.C.S., sets forth 

the requirements for notices in traffic violations, as 

follows: 

(a) Whenever a person is arrested for any 

violation of this Act punishable as a misdemeanor, and such person is not immediately 

taken before a magistrate as hereinbefore 

required, the arrestina officer shall nrepare in dUDliC&e written notice to aooear 

in court 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.) 

In response to your questions numbered "2" through 

t15,t' the requisites of a complaint under the limited 

conditions provided in section (d) of article 27.14 of the 

Code of Criminal Procedure are the requirements for a 

notice set forth in article 6701d, section 148, V.T.C.S. 

Your first question relative to whether this provision applies to justice courts appears to have been 

prompted by the requirement that a complaint be filed 

conforming to article 45.01, Code of Criminal Procedure, 

in the event a defendant enters a plea 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 

in the corporation court. Section (d) in addressing the' 

circumstances in which the notice of violation might be 

used as a complaint did not limit its use to the corporation court. No other legislation at that or the subsequent 70th Legislature addressed this question. Thus, it 

is the latest statute of enactment. See Gov't Code 

5311.025(a). In Valleio 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 a defendant 

shall not be discharged by reason of an informality in a 

complaint, applied to the corporation court despite the 

p. 4275 
Honorable Randy Sikes - Page 7 (JR-876) 

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 in both 

justice and corporation courts is the complaint. That 

same rationale would appear to be more applicable in the 

instant case where the legislature has not expressed any 

intention to limit the procedure outlined for pleas of 

guilty and nolo contendere to the corporation court. 

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

applies to both justice and municipal courts. 

In your question numbered "611 you ask if convictions 

alleged in a habitual violator case will withstand attack 

in an administrative hearing where it is contended "that a 

conviction cannot be used because of the lack of a complaint or a fundamentally defective complaint due to the 

use of the ticket as a complaint?" You undoubtedly are 

making reference to the procedure outlined in section 22 

of article 6687(b), V.T.C.S., 

determine whether a 

providing for a hearing to 

recommendation is to be made 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 a habitual violator of the law," defined in 

subsection (b)(4) as follows: 

The term 'habitual violator' as used 

herein, shall mean any person with four (4) 

or more convictions arising out of different 

transactions in a consecutive period of 

twelve (12) months, or seven (7) or more 

convictions arising out of different transactions within a period of twenty-four (24) 

months. (Certain named violations are specifically excluded.) 

In Texas 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 in this case we are not 

concerned with criminal penalties but 

rather with an administrative and 

p. 4276 
Honorable Randy Sikes - Page 8 (JR-8761 

regulative power vested in the 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 is not 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 to be avoided by attacks in courts 

having criminal jurisdiction are not 

apposite here. This is not a criminal case 

but one to determine whether a party#s 

privilege to drive a motor vehicle over the 

highways of Texas should be suspended in the 

interest of public safety. It may be that 

if a jail sentence were assessed because of 

the violation of a traffic safety rule, and 

a defendant could show upon the trial that 

he neither appeared in person nor by 

attorney, he could secure his release by 

writ of habeas corpus issued by a court 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, it cannot be said that any and 

all persons may ignore the judgment before 

it is pronounced invalid or void by proper 

authority. In this case, the County Judge 

was not considering a direct attack or 

conducting a habeas corpus hearing and was 

no more authorized to ianore the iudoments 

of convictions than would a orison warden be 

justified in discharaina a nrisoner before 

the iudoment convictina such orisoner had 

been declared invalid bv a court of 

p. 4277 
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Honorable Randy Sikes - Page 9 (JM-876) 

aetent iurisdiction. There are proper 

methods and competent tribunals to 

accomplish the destruction of judgments, but 

a collateral attack in a proceeding such as 

this is not 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 

by Article 6701d, 5152, are admissible in 

evidence under the provisions of Article 

3731a, V.T.C.S., as they are certificates or 

reports made by an officer of this state or 

a governmental subdivision thereof in the 

performance of the functions of his 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 

of conviction, nurnort to be statements of 

information disclosed bv the record which 

the iudae or maaistrate is recuired to keeD. 

Thev constitute orima facie evidence of the 

contents of a iudoment. However, as we 

stated in Texas DeDartUEnt of Public Safety 

v. Miller, Tex., 386 S.W.2d 760. 

'If the notice of a conviction be 

inaccurate it may 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 

p. 4278 
Honorable Randy Sikes - Page 10 (JR-876) 

corrective measures are taken. such 

notices or abstracts are to be 

accented as evidence of 'the matters 

stated herein.' (Emphasis added.) 

417 S.W.2d at 147. 

The use of the duplicate traffic violation notice as 

a complaint pursuant to section (d) of article 27.14 of 

the Code of Criminal Procedure, cannot be attacked in an 

administrative proceeding brought in an 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 of convictions may be 

corrected if inaccurate, otherwise they are to be accepted 

as evidence of the matters stated therein. It will be 

assumed that a direct attack is not made upon the use of 

such a charging instrument since a conviction can only be 

had under section (d) where the plea is guilty or nolo 

contendere. You do not ask nor do we explore any possible 

attacks which may be made upon the conviction in an appeal 

in the criminal context or by way of habeas corpus. Any 

such determination would necessarily have to be made 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 in the event the 

defendant enters a plea of "not guilty." Article 45.01 

contains the requirements for a complaint in corporation 

court and provides 

Proceedings in a corooration court shall 

be commenced by complaint, which shall 

begin: 'In the name and by authority of the 

State of Texas * ; and shall conclude: 

'Against the peace and dignity of the 

State': and if the offense is only covered 

by an ordinance, it may also conclude:, 

'Contrary to the said ordinance.' The 

recorder shall charge the jury when 

requested in writing by the defendant or his 

attorney. Complaints before such court may 

be sworn to before any officer authorized to 

administer oaths or before the recorder, 

clerk of the court, city secretary, city 

attorney or his deputy, each of whom, for 

that purpose, shall have power to administer 

oaths. (Emphasis added.) 

? 

p. 4279 
Honorable Randy Sikes - Page 11 (JR-876) 

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, or any other officer 

authorized by law to administer oaths, that 

an offense has been committed in the county 

which a justice of the peace has jurisdiction finally to try, the justice or other 

officer shall reduce the same to writing and 

cause the same to be signed and sworn to by 

the complainant. It shall be duly attested 

by the officer before whom it was 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 as practicable: 

2. The offense with which he is charged, 

in plain and intelligible words; 

3. That the offense was committed in the 

county in which the complaint is made; and 

4. It must 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 of article 45.01. 

It should be noted that, despite the fact that the 1985 

amendment to section 12 of article V of the 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 a plea of "not 

guilty" a complaint conforming to article 45.01 shall be 

filed, a safer practice in the justice court would be to 

p. 4280 
Honorable Randy Sikes - Page 12 W-876) 

exercise care that the complaint meets the requirements of 

the three statutes relating to the requisites of complaints in both justice and corporation courts. 

Section (d) of article 27.14 of the Code of Criminal 

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 a duplicate of the 

notice as a complaint 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 be 

attacked on the 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 a plea 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 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. 

SUMMARY 

Section (d) of article 27.14 of the Code 

of Criminal 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 a complaint 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 be attacked on the 

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 a plea 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 

p. 4281 
Honorable Randy Sikes - Page 13 (JM-876) 

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 of Texas 

MARYKELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLKY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 4282