OP TEXAS 

AURTIN. TNXAIS 78Wll 

March 28, 1977 

The Honorable Maurice S. Pipkin Opinion'No. H- 963 

Executive Director 

Judicial Qualifications Re: Whether a justice 

Commission of the peace may require 

Austin, Texas 78701 that a defendant appear 

in person before a traffic 

case can be disposed of. 

Dear Mr. Pipk ,in: 

You have requested our opinion regarding the meaning of 

"appear in court" as that phrase is used in sections 148 

and 149 of article 6701d, V.T.C.S., the State Traffic 

Regulations. Those sections provide: 

Sec. 148. (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 

arresting officer shall prepare in duplicate 

written notice to appear in court containing 

the name and address of such person, the 

license number of his vehicle, if any, the 

offense charged, and the time and place when 

and where such person shall appear in court. 

Provided, however, that the offense of 

speeding shall be the only offense making 

mandatory the issuance of a written notice 

to appear in court, and only then if the 

arrested person gives his written promise to 

appear in court, by signing in duplicate the 

written notice prepared by the arresting officer; 

and provided further, that it shall not be 

mandatory for an officer to give a written 

notice to appear in court to any person 

arrested for the offense of speeding when.such 

person is operating a vehicle licensed in a 

state or country other than the State of Texas 

or who is a resident of a state or country 

other than the State of Texas. 

p. 4012 
The Honorable Maurice S. Pipkin - page 2 (H-963) 

(b) The time specified in said notice to 

appear must be at least ten (10) days after 

such arrest unless the person arrested shall 

demand an earlier hearing. 

(c) The place specified in said notice to 

appear must be before a magistrate within the 

city or county in which the offense charged 

is alleged to have been committed and who has 

jurisdiction of such offense. 

(d) The arrested person in order to secure 

release as provided in this section, must give 

his written promise so to appear in court by 

signing in duplicate the written notice prepared by the arresting officer. The original 

of said notice shall be retained by said 

officer and the copy thereof delivered to the 

person arrested. Thereupon, said officer 

shall forthwith release the person arrested, 

from custody. 

(e) Any officer violating any of the provisions of this section shall be guilty of 

misconduct in office and shall be subject to 

removal from office. 

Sec. 149. (a) Any person wilfully violating 

his written promise to appear in court, given 

as provided in this Article, is guilty of a 

misdemeanor regardless of the disposition of 

the charge upon which he was originally arrested. 

(b) A written promise to appear in court may 

be complied with by an appearance by counsel. 

Specifically, you ask whether a person may satisfy the "appear 

in court" requirement of section 148 by contacting the 

appropriate justice of the peace by mail or by telephone. 

You also inquire whether a defendant, acting through his 

attorney, may plead not guilty by telephone and subsequently 

mail an appearance bond to the justice of the peace. 

In civil cases in Texas, it is well established that 

a party may make an "appearance" in court without being 

physically present in the courtroom. Devereaux v. Rowe , 

p. 4013 
. - 

The Honorable Maurice S. Pipkin - page 3 (H-963) 

293 S.W. 207, 208 (Tex. Civ. App.. -- San Antonio 1927, no 

writ). The act of filing an answer constitutes an appearance. 

Clagett v. Neugebauer, 376 S.W.2d 768, 770 (Tex. Civ. App. -- 

Austin 1x4, no writ); Staley v.~ Western Steel Wire & w 

co., 

-- 

355 S.W.2d 565, 567 (Tex. Civ. App. -- Dallas 1962, 

writ ref'd n.r.e.). It might be argued, however, that, 

under section 148, a defendant's execution of a written 

promise to appear is a substitute for arrest, and that his 

subsequent "appearance" ought to require his physical presence 

in court. But section 148(b) undercuts this reasoning, by 

providing that sa written promise to appear in court may 

be complied with by an appearance by counsel." 

Section 150 provides that sections 148 and 149 

shall govern all police officers in making 

arrests without a warrant for violations of 

this Act;but the procedure prescribed herein 

shall not otherwise be exclusive of any other 

method prescribed by law for the arrest and 

prosecution of a person for an offense of 

like grade. 

Thus, procedings against someone accused of violating the State 

Traffic Regulations are not governed exclusively by sections 

148 and 149, but may accord with article 27.14 of the Code of 

Criminal Procedure, which provides: 

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. In a mis- --- 

(Emphasis 

P. 4014 
. - 

The Honorable Maurice S. Pipkin - page 4 (h-963) 

Article 27.14 indicates that, in any traffic offense 

"for which the maximum possible punishment is by fine only," 

which embraces every offense within the jurisdiction of a 

justice court, a defendant may plead guilty by paying a 

fine or by paying "an amount accepted by the court." In 

our opinion, as soon as a defendant has thereby paid a 

fine and such fine has been received and accepted by the 

court, he has "appeared in court" for purposes of section 

148. Of course, a justice of the peace may insist that a 

defendant mak,e an appearance in the courtroom simply 

by refusing to set the amount of the fine by mail or by 

telephone. If, however, the justice of the peace prefers 

to handle the transaction without requiring the defendant's 

presence in court, either personally or by counsel, there 

is nothing in section 148, when read in conjunction with 

article 27.14, which would prevent his doing so. In such 

instance, a defendant has entered his plea and thus "appeared" 

when the justice has received and accepted the payment tendered. 

If the defendant mails a written plea of guilty or nolo 

contendere to the justice of the peace, but fails to enclose 

payment in the amount of the fine, he has not fully complied 

with the requirements of article 27.14 for entering a plea. 

In such case, he is apparently still obliged to fulfill his 

written promise to appear in court, which may be satisfied by a 

personal appearance on the appointed date or by an appearance 

of counsel. If the defendant wilfully violates that written 

promise, he is guilty of a misdemeanor under section 149(a). 

Your second question is whether, under section 148, 

a defendant may, through his attorney, plead not guilty and 

subsequently mail an appearance bond to a justice of the 

peace. Although, as we have noted, the Code of Criminal 

Procedure makes special procedures available for pleas of 

guilty in misdemeanor cases, it is more restrictive regarding 

pleas of not guilty. Article 27.16 provides: 

The plea of not guilty may be made orally 

by the defendant or by his counsel in 

open court. If the defendant refuses to 

plead, the plea of not guilty shall be 

entered for him by the court. 

In our opinion, a defendant who promises to "appear in court" 

pursuant to section 148, and who wishes to plead not guilty, 

must do so "in open court," either personally or through 

P. 4015 
. - 

The Honorable Maurice S. Pipkin - page 5 (H-963) 

his counsel. Under section 149 

there is nothing to prevent the 

of article 6701d, however, 

magistrate and defendant 

from communicating to arrange for disposition of the case by 

a single appearance so that the plea of not guilty and the 

trial could be conducted at the same time. 

SUMMARY 

APPROVED: 

A defendant who wishes to plead guilty may 

I, appear in court" for purposes of section 

148 of article 6701d, V.T.C.S., by mailing 

payment of a fine set by the justice of the 

peace. A defendant who wishes to plead 

not guilty under section 148 must do 

so in open court, either personally or 

through his counsel, but the magistrate 

may arrange for disposition of the case 

on a single appearance on a date other 

than that specified in the original 

promise to appear. 

Very truly yours, 

-7 

,,,',. C‘ /- 2h 

/' 

OHN L. HILL 

Attorney General of Texas 

c. ROBERT HEATH, Chairman 

Opinion Committee 

P. 4016