# The Attorney General ofTexas

March 1, 1978 KIHN L.HILL rdttorneyGeneral
Honorable Patrick J. Ridley County Attorney Bell County P.0. Box474 Belton, Texas 76513
Dear Mr. Ridley: Opinion No. H- 1138
Re: Construction of the Speedy Trial Act.

You askthree questions about the application of the Speedy Trial Act to atrial de novo incounty court following a conviction injustice or municipal courts. The justice and municipal courts have jurisdiction in misdemeanor caseswhere the fine does not exceed two hundred dollars. Code Crim. Proc. arts. 4.11,4.14;see Penal Code SSl.O7(a1(141,l.O7(a)(211, 12.23. Inappeals from these courts tothe county court, “the trial shall be de novo inthe trial inthe county court, the same as if the prosecution had been originally commenced in that court.” Code Crim. Proc. art. 44.17. A portion of the Speedy Trial Act, article 321\.02(4) of the Code of Criminal Procedure provides for dismissal of the complaint if the State isnot ready for trial within “30daysof the commencement of a criminal action if the defendant is accused of a. misdemeanor punishable by a fine only.” You ask when the criminal action commences incasesofappeal to the county court for atrial de novo. A defendant who appeals to the county court for a trial de novo has presumably hadaspeedy trial pursuant to article 32A.02 in the lower court. Article 32A.02 provides for aspeedy trial, not aspeedy appeal. However, the appeal from a municipal orjustice court vacates the conviction and transfers the charge to the county court asif originally filed there. Code Crim. Proc. art. 44.17; McIntosh v. Watts, 5S.W.2d 1003(Tex. Civ. App. -- Waco1928, no writ). The fact that the trial de novo ispart of an appeal process should not exempt it from the speedy trial provisions, which apply to retrial following appeal as well asto the first trial. In our opinion, the trial de novo in the county court issubject to~the requirements ofarticle 32A.02. The provisions of article 32A.02 describing the commencement of a criminal action donot provide an answer toyour question. The Act provides that acriminal action generally commences when an indictment, information, orcomplaint against the defendant isfiled, or when he isarrested to answer for the offense, if earlier. No information is required in the county court on

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appeal from a justice court conviction, Knecdlcr v. Stnte,, 99 S.W.2d 605 (Ter. Crim. App. 1936), and a defendant arrested following trial in the lower court is arrested pursuant to a conviction and not to answer for the offense, see Code Crim. Proc. arts. 44.13, 45.51. The general rule thusdots not apply to thecase you inquire about. Exceptions for retrial following mistrial, an order granting a new trial, appeal, or collateral attack do not apply either. Code Grim. Proc. art. 32A.02, S2(b). We therefore turn to the criminal code provisions governing the trial de novo todetermine when the criminal action commences incounty court. The appeal to the county court isperfected when the defendant files avalid appeal bond. Code Crim. Proc. art. 44.14. At that point the judgment of the inferior court issuperseded, and the county court acquires appellate jurisdiction. Deal v. State, 423 S.W.2d 929 (Tex. Crim. App. 1968); McNamara v. Druse, 26 S.W. 506 (Tex. Crim. App. 18941. The justice no longer has authority over the case, except to send it to the county court. Page v. State, 9 Tex. Ct. App. 466 (1880). Accordingly, we believe that the requirement of aspeedy trial incases involving a trial de novo begins when the defendant files avalid appeal bond.
You also inquire about the application of article 17.151of the Code of Criminal Procedure to a defendant who has appealed to the county court. This provision states inpart:

Section 1. A defendant who is detained in jail pending trial of anaccusation against him must be released either on personal bond orby reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he isbeing detained within:

(4) five days from the commencement of his detention if he is accused of a misdemeanor punishable byafine only.
You inquire when the defendant’s detention begins within this provision.
There are two ways to give the county court jurisdiction of an appeal from the justice court. Guenzel v. State, 80 S.W. 371(Tex. Crim. App. 1904). The appellant can file an appeal bond, in which case he is freed from custody. Code Crim. Proc. art. 44.13; seeart; 44.16; Chatfield v.State, 47S.W.2d 315(Tex. Crim. App. 1932). If this happens, he has not been detained and need not avail himself of the provisions of article 17.151. In the alternative, he can remain in the sheriff’s custody. Burt v.State, 186S.W.770 (Tex. Crim. App. 1916);Guenzel v.State, M. In this caqis detention begins when he isactually taken into custody following conviction. See Code Crim. Proc. arts. 45.43, 45.51. If the State isnot ready for trial within rive days from the beginning of this detention, he is to be released under the provisions ofarticle 17.151,section 1.

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You finally inquire about the amount by which article 17.151requires the bail tobe reduced. That provision states that the defendant must “bereleased either on personal bond orby reducing the amount of bail required
. ...‘I Inour opinion, the bail must be reduced to an amount defendant can pay and thereby secure his release. The amount of reduction necessary to release the defendant will depend onthe facts of each case. Atoken reduction of onedollar will not comply with this section’s requirement that defendant “be released
. . . by reducing the amount of bail required.” SUMMARY

A trial de nova in county court following conviction in municipal orjustice court issubject to article 32A.02 of the Code of Criminal Procedure, providing for speedy trials of criminal charges. The criminal action commences for purposes of article 32A.02 when the defendant files a valid appeal bond. The defendant’s detention, for purposes of article 17.151of the Code of Criminal Procedure begins when he isactually taken into custody following conviction in the municipal or justice court. The article 17.151requirement that defendant “be released
. . . by reducing the amount of bail” means that bail must be reduced to an amount he can afford topay.

APPROVED:

C. ROBERT HEATH, Chairman Opinion Committee jst

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