C 

THE ATTORNEY GENERAL 

OF TEXAS 

March 7, 1988 

Honorable Frank Hill 

Kendall County Attorney 

207 E. San Antonio Street 

Boerne, Texas 78006 

Opinion NO. JM-869 

Re: Whether a "ticket" 

given to a defendant may 

serve as the complaint in 

a trial de novo in county 

court (RQ-1196) 

Dear Mr. Hill: 

you ask whether a "ticket" given to a defendant may 

serve as the complaint in a trial de novo in county court. 

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

Procedure, as amended by Acts 1985, 69th Leg., ch. 87, at 

514, effective September 1, 1985, provides: 

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 cony 

serves as a complaint to which the defendant 

mav nlead 'auiltv.' 'not auiltv.' or 'nolo 

contendere.' If the defendant DleadS 'not 

auiltv' to the offense, a comolaint 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. 

Articles 44.17 and 44.18 of the Code of Criminal 

Procedure govern the conduct of a trial de novo in county 

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Honorable Frank Hill - Page 2 (JM-869) 

court upon appeal of a judgment from a justice court or 

municipal court. Article 44.17 provides: 

In all appeals to a county court from 

justice courts and municipal courts other 

than municipal courts of record, the trial 

shall be de novo in the trial in the county 

court, the same as if the prosecution had 

been originally commenced in that court. An 

appeal to the county court from a municipal 

court of record may be based only on errors 

reflected in the record. 

Article 44.18 provides: 

In appeals from justice and corporation 

courts, all the original papers in the case, 

together with the appeal bond, if any, and 

together, with a certified transcript of all 

the proceedings had in the case before such 

court shall be delivered without delay to 

the clerk of the court to which the appeal 

was taken, who shall file the same and 

docket the case. 

These provisions have been interpreted to mean that it is 

not necessary for the prosecution to file an information 

in county court when a judgment is appealed from a justice 

court or municipal court "because the original complaint 

in the justice court serves as the functional equivalent 

of an information in the county court." Blevins v. State, 

672 S.W.2d 828, 829 (Tex. APP. - Corpus Christi 1984, no 

pet.). 

You ask whether the rule of Blevins applies in a case 

in which a person pleaded guilty or nolo contendere to a 

traffic complaint in the lower court, appealed the lower 

court judgment, and then pleaded not guilty in the county 

court. You ask whether a ticket, which would have been a 

proper complaint in the lower court because of the 

defendant's plea of guilty or nolo contendere, could serve 

as the complaint in the county court after the defendant 

pleaded not guilty. 

The Texas Supreme Court in Southern Canal Co. v. 

State Board of Water Enaineers, 318 S.W.2d 619 (1958), 

reviewed the scope of a trial de novo in county court. 

The court stated as follows: 

P. 4212 
Honorable Frank Hill - Page 3 (JM-869) 

In IOne Star Ga 

279, 153 S.W.2d 68; 

Co. v. State 

692, we said: 

137 Tex. 

'Power 

to try a case de Aovo vests a court with 

full Dower to determine the issues and 

riahts of all narties involved. nd to trv 

the case as if the suit had Eeen filed 

oriainallv in that court.' The sine gua non 

of a de novo trial as that term is used to 

describe a retrial of a matter or controy~~gy theretofore tried by another tribunal 

is the nullification of the judgment or 

order. of the first tribunal and a retrial of 

the issues on which the iudoment or order 

was founded. When jurisdiction of the 

second tribunal attaches, the judgment or 

order of the first tribunal is not merely 

suspended, but is nullified. Examples of 

that type of trial are found in our statutes 

applicable to appeals from Justice Court 

judgments and from awards made by the Industrial Accident Board. 

Section 16 of article 5 of our state 

constitution provides: 'In all appeals from 

Justices Courts there shall be a trial de 

novo in the County Court . . .# In interpreting and applying that provision it is 

held that the perfection of an appeal from a 

judgment of a Justice Court to a County 

Court glrnuls the Justice Court judgment. 

(Last emphasis in original; others added.) 

318 S.W.Zd at 622. 

The Alabama Supreme Court in Vinvard v. Reoublic Iron 

and Steel Co., 87 So. 552 (1921), had before it the issue 

of whether a new or amended complaint could be filed in a 

trial de novo. In Vinvard, the court stated that a new or 

amended complaint may be filed, "provided it does note 

exhibit an entire change of parties plaintiff or 

defendant, and does not show a departure from, or change 

in, the original form of action." 87 So. at 555. 

Vinvard appears to be consistent with language in 

Southern Canal that in a trial de novo there shall be a 

retrial of the issues on which the iudoment was founded 

and the case shall be tried as if it had been oriainallv 

filed in that court. 

P. 4213 
Honorable Frank Hill - Page 4 (JM-869) 

You suggest that a defendant cannot object to the use 

of the duplicate copy of the notice of violation as a 

complaint for the first time in the trial de novo. 

the trial de novo vests 

Since - 

the court with full aower to 

determine the issues and riahts of all narties involved as 

if the suit had been oriainallv filed in that court, it 

follows that a defendant may raise a question about the 

pleading for the first time in the de novo trial. 

Therefore, we think that the language of articles 

44.17 and 44.18 must yield to the language of article 

27.14. Section (d) of article 27.14 provides that a 

complaint shall be filed upon the defendant entering a 

plea of "not guilty." Where the conviction has been based 

on the notice of violation (serving as a complaint in the 

inferior court) and upon trial de novo in the county court 

the defendant enters a plea of "not guilty," a complaint 

should be filed. The offense charged in the complaint 

must be the one alleged in the inferior court upon which 

the defendant was convicted. If the plea in the county 

court de novo trial is lVguilty" or %olo contendere" the 

duplicate copy of the notice upon which the conviction was 

based in the inferior court may serve as the complaint. 

? 

SUMMARY 

Where a conviction in an inferior court 

is based on a plea of "guilty" or Wolo 

contendere" in a case where the notice of 

violation serves as the charging instrument 

pursuant to section (d) of article 27.14, 

Code of Criminal Procedure, a complaint 

should be filed in a trial de novo in the 

county court upon a plea of "not guilty" 

being entered by the defendant. The 

complaint must allege the same offense as 

the one charged in the inferior court. If 

the plea in the de novo trial in county 

court is "guilty" or "nolo contendere," the 

duplicate copy of the notice of violation 

upon which the conviction was based in the 

inferior court may serve as the complaint. 

JIM MATTOX 

Attorney General of Texas 

,--. 

P. 4214 
P 

Honorable Frank Hill - Page 5 (JM-869) 

MARYKELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

P- 4215