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 adefendant may serve as the complaint in atrial de novo incounty court (RQ-1196)

Dear Mr. Hill:

you askwhether a "ticket" given to adefendant may serve as the complaint inatrial denovo incounty court.
Section (d)of article 27.14 of the Code of Criminal Procedure, as amended byActs 1985, 69th Leg., ch. 87, at 514, effective September 1, 1985, provides:

Ifwritten notice of atraffic violation forwhich maximum possible punishment is by fine only orof aviolation relating to the manner, time, and place ofparking has been prepared, delivered, and filed with the court and alegible duplicate copy has been given to the defendant, the dunlicate cony serves as acomplaint towhich the defendant
mav nlead 'auiltv.' 'not auiltv.' or 'nolo contendere.' If the defendant DleadS 'not auiltv' to the offense, acomolaint 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 asworn 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 itwith the court.
Articles 44.17 and 44.18 of the Code of Criminal Procedure govern the conduct ofatrial de novo in county

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court upon appeal of a judgment from a justice court or municipal court. Article 44.17 provides:

Inall appeals to acounty court from justice courts andmunicipal courts other than municipal courts of record, the trial shall be de novo inthe trial in the county court, the **same** as if the prosecution had been originally commenced inthat court. An appeal to the county court from a municipal court of record may bebased only on errors reflected inthe record.
Article 44.18 provides:

Inappeals from justice and corporation courts, all the original papers inthe case, together with the appeal bond, ifany, and together, with acertified transcript of all the proceedings had inthe case before such court shall be delivered without delay to the clerk of the court towhich the appeal was taken, who shall file the same and docket the case.
These provisions have been interpreted tomean that it is not necessary for the prosecution to file an information incounty court when ajudgment isappealed from a justice court ormunicipal court "because the original complaint inthe justice court serves as the functional equivalent of an information inthe 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 inacase inwhich aperson pleaded guilty ornolo contendere to a traffic complaint inthe lower court, appealed the lower court judgment, and then pleaded not guilty inthe county court. You ask whether aticket, which would have been a proper complaint in the lower court because of the defendant's plea ofguilty ornolo contendere, could serve as the complaint inthe county court after the defendant pleaded not guilty.

The Texas Supreme Court in Southern Canal Co. v. State Board ofWater Enaineers, 318 S.W.2d 619 (1958), reviewed the scope ofa trial de novo incounty court. The court stated as follows:

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InIOne Star Ga 279, 153 S.W.2d 68; Co. v. State 692, we said:137 Tex. 'Power to try a case de Aovo vests acourt 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 inthat court.' The sine gua non of ade novo trial as that term isused to describe aretrial of a matter or controy~~gy theretofore tried by another tribunal is the nullification of the judgment or order.of the first tribunal and aretrial 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 isnot merely suspended, but isnullified. Examples of that type of trial are found inour 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: 'Inall appeals from Justices Courts there shall be atrial de
novo inthe County Court . . .# In interpreting and applying that provision it is held that the perfection of anappeal from a judgment of a Justice Court to a County Court glrnuls the Justice Court judgment. (Last emphasis inoriginal; others added.)

318 S.W.Zd at 622.

The Alabama Supreme Court inVinvard v. Reoublic Iron and Steel Co., 87 So. 552 (1921), had before itthe issue ofwhether anew oramended complaint could be filed in a trial de novo. InVinvard, the court stated that anew or amended complaint may be filed, "provided it does note exhibit an entire change of parties plaintiff or defendant, and does not show adeparture from, or change in, the original form ofaction." 87 So. at 555.
Vinvard appears tobe consistent with language in Southern Canal that in atrial de novo there shall be a retrial of the issues onwhich the iudoment was founded and the case shall be tried as if ithad been oriainallv filed inthat court.

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You suggest that adefendant cannot object to the use of the duplicate copy of the notice of violation as a complaint for the first time inthe trial de novo. the trial de novo vests Since - the court with full aower to determine the issues 

### andriahts of all narties involved as ifthe suit had been oriainallv filed inthat court, it follows that adefendant may raise aquestion about the pleading for the first time inthe 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 ofviolation (serving as acomplaint in the inferior court) and upon trial de novo inthe county court the defendant enters aplea of "not guilty," a complaint should be filed. The offense charged inthe complaint must be the one alleged in the inferior court upon which the defendant was convicted. Ifthe plea inthe county court de novo trial is lVguilty"or %olo contendere" the duplicate copy of the notice upon which the conviction was based inthe inferior court may serve as the complaint. ? SUMMARY

Where aconviction inan inferior court isbased on a plea of "guilty" or Wolo contendere" ina case where the notice of violation serves as the charging instrument pursuant to section (d) ofarticle 27.14, Code of Criminal Procedure, a complaint should be filed inatrial 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 inthe 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 ,--.

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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

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