### 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 thepeace may require Austin, Texas 78701 that a defendant appear inperson before a traffic case can be disposed of.

Dear **Mr.** Pipk,in:
You have requested our opinion regarding themeaning of "appear in court" as thatphrase isused in sections 148 and 149 of article 6701d, V.T.C.S., the State Traffic Regulations. Those sections provide:

Sec. 148. (a)Whenever aperson is arrested for any violation of thisAct punishable as amisdemeanor, and such person isnot immediately taken before a magistrate as hereinbefore required, the arresting officer shall prepare induplicate written notice toappear 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 awritten notice to appear in court, and only then if the arrested person gives hiswritten promise to appear in court, by signing induplicate the written notice prepared by the arresting officer; and provided further, that it shall not be mandatory for an officer togive awritten notice to appear in court to any person arrested for the offense of speeding when.such person is operating avehicle 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. 4012The 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 amagistrate within the city or county inwhich the offense charged is alleged tohave been committed andwho has jurisdiction of such offense. (d)The arrested person inorder to secure release as provided in this section, must give his written promise so to appear incourt by signing induplicate thewritten 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 theperson arrested, from custody. (e)Any officer violating any of theprovisions of this section shall **be** guilty of misconduct inoffice 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 thisArticle, isguilty of a misdemeanor regardless of the disposition of the charge upon which hewas originally arrested. (b)Awritten promise to appear in court **may be**  complied with by an appearance by counsel. Specifically, you askwhether a person may satisfy the "appear incourt" requirement of section 148 **by** contacting the appropriate justice of the peace bymail or by telephone. You also inquirewhether adefendant, acting through his attorney, may plead not guilty by telephone and subsequently mail an appearance bond to the justice of the peace.
Incivil cases inTexas, it iswell 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..-- SanAntonio 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, nowrit); Staley v.~Western Steel Wire &w co., -- 355 S.W.2d 565, 567 (Tex.Civ. App. -- Dallas 1962, writ ref'd n.r.e.). Itmight be argued, however, that, under section 148, adefendant's execution of awritten 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 sawritten promise toappear in court **may** be complied with by an appearance by counsel." Section 150provides that sections 148 and 149
shall govern all police officers inmaking arrests without awarrant for violations of this Act;but theprocedure prescribed herein shall not otherwise be exclusive of any other method prescribed by law for the arrest and prosecution of aperson 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,butmay accord with article 27.14 of the Code of Criminal Procedure, which provides:

A plea of 'guilty'or aplea of 'nolocontendere' inamisdemeanor casemay bemade either by the defendant or his counsel inopen court; in such case, the defendant or his counsel may waive a jury, and thepunishment may be assessed by the court either upon orwithout evidence, at the discretion of the court. In amis- ---

(Emphasis

P. 4014. - The Honorable Maurice S. Pipkin - page 4 (h-963)

Article 27.14 indicates that, inany traffic offense "forwhich themaximum possible punishment isby fine only," which embraces every offense within the jurisdiction of a justice court, adefendant may plead guilty by paying a fine or by paying "anamount accepted by the court." In our opinion, as soon as adefendant 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,ean appearance in the courtroom simply by refusing to set the amount of the fine bymail 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, adefendant has entered his plea and thus "appeared" when the justice has received and accepted thepayment tendered.
If the defendant mails awritten 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 aplea. In such case, he isapparently still obliged to fulfill his written promise toappear in court, which may be satisfied by a personal appearance on the appointed date or by an appearance of counsel. If thedefendant wilfully violates thatwritten promise, he is guilty of amisdemeanor under section 149(a).
Your second question iswhether, 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 forpleas of guilty inmisdemeanor cases, it ismore restrictive regarding pleas of not guilty. Article 27.16 provides:

The plea of not guilty may bemade orally by thedefendant or by his counsel in open court. If the defendant refuses to plead, theplea of not guilty shall be entered for him by the court.
Inour opinion, adefendant who promises to "appear in court" pursuant to section 148, and who wishes toplead not guilty, must do so "inopen court," either personally or through

P. 4015. - The Honorable Maurice S. Pipkin -page 5 (H-963)

his counsel. Under section 149 there is nothing toprevent theof article 6701d, however, magistrate and defendant from communicating to arrange for disposition of the case by a single appearance so that theplea of not guilty and the trial could be conducted at the same time.
SUMMARY

APPROVED: A defendant who wishes toplead guilty may

I, appear in court" for purposes of section 148 of article 6701d,V.T.C.S., bymailing payment of a fine set by the justice of the peace. A defendant who wishes toplead not guilty under section 148must do so inopen court, either personally or through his counsel, but themagistrate may arrange fordisposition of the case on a single appearance on adate 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