The Attorney General of Texas 

March 1, 1978 

KIHN L. HILL 

rdttorney General 

Honorable Patrick J. Ridley 

County Attorney 

Bell County 

P. 0. Box 474 

Belton, Texas 76513 

Dear Mr. Ridley: 

Opinion No. H- 1138 

Re: Construction of the Speedy 

Trial Act. 

You ask three questions about the application of the Speedy Trial Act to 

a trial de novo in county court following a conviction in justice or municipal 

courts. The justice and municipal courts have jurisdiction in misdemeanor 

cases where the fine does not exceed two hundred dollars. Code Crim. Proc. 

arts. 4.11, 4.14; see Penal Code SS l.O7(a1(141, l.O7(a)(211, 12.23. In appeals from 

these courts to the county court, “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.” 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 is not ready for trial within “30 days of 

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 in cases of appeal to the county court for a trial de novo. 

A defendant who appeals to the county court for a trial de novo has 

presumably had a speedy trial pursuant to article 32A.02 in the lower court. 

Article 32A.02 provides for a speedy trial, not a speedy appeal. However, the 

appeal from a municipal or justice court vacates the conviction and transfers 

the charge to the county court as if originally filed there. Code Crim. Proc. 

art. 44.17; McIntosh v. Watts, 5 S.W.2d 1003 (Tex. Civ. App. -- Waco 1928, no 

writ). The fact that the trial de novo is part of an appeal process should not 

exempt it from the speedy trial provisions, which apply to retrial following 

appeal as well as to the first trial. In our opinion, the trial de novo in the 

county court is subject to~the requirements of article 32A.02. 

The provisions of article 32A.02 describing the commencement of a 

criminal action do not provide an answer to your question. The Act provides 

that a criminal action generally commences when an indictment, information, 

or complaint against the defendant is filed, or when he is arrested to answer 

for the offense, if earlier. No information is required in the county court on 

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Honorable Patrick J. Ilidlcy - l’W! 2 (H-1130) 

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 thus dots 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, S 2(b). We therefore turn to the criminal code provisions governing the 

trial de novo to determine when the criminal action commences in county court. 

The appeal to the county court is perfected when the defendant files a valid 

appeal bond. Code Crim. Proc. art. 44.14. At that point the judgment of the 

inferior court is superseded, 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 a speedy trial in cases involving a 

trial de novo begins when the defendant files a valid appeal bond. 

You also inquire about the application of article 17.151 of the Code of 

Criminal Procedure to a defendant who has appealed to the county court. This 

provision states in part: 

Section 1. A defendant who is detained in jail pending 

trial of an accusation against him must be released either on 

personal bond or by reducing the amount of bail required, if 

the state is not ready for trial of the criminal action for 

which he is being detained within: 

(4) five days from the commencement of his 

detention if he is accused of a misdemeanor 

punishable by a fine 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; see art; 44.16; Chatfield v. State, 47 S.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, 186 S. W. 770 (Tex. Crim. App. 1916); Guenzel v. State, M. 

In this caqis detention begins when he is actually taken into custody following 

conviction. See Code Crim. Proc. arts. 45.43, 45.51. If the State is not ready for 

trial within rive days from the beginning of this detention, he is to be released 

under the provisions of article 17.151, section 1. 

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Honorable Patrick J. Ridley - Page 3 (H-1130) 

You finally inquire about the amount by which article 17.151 requires the bail 

to be reduced. That provision states that the defendant must “be released either on 

personal bond or by reducing the amount of bail required . . . .‘I In our 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 

on the facts of each case. A token reduction of one dollar 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 or justice court is subject 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 17.151 of the Code of Criminal Procedure begins when 

he is actually taken into custody following conviction in the 

municipal or justice court. The article 17.151 requirement 

that defendant “be released . . . by reducing the amount of 

bail” means that bail must be reduced to an amount he can 

afford to pay. 

APPROVED: 

C. ROBERT HEATH, Chairman 

Opinion Committee 

jst 

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