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/-- HonorableD. C. Jim Dozier

MontgomeryCountyAttorney Courthouse Conroe,Texas 77301 May 18, 1987

Opinion No. JM-701 lb: Whether amagistratemay require as a precondition for obtaining a trial, the posting of an appearance bond in minor traffic offense cases under article 6701d,V.T.C.S. DearMr. Dozier:
You ask:

May a magistrate require an appearance.bond to be posted in a case involving the alleged violation of a speeding law (under article 6701d, V.T.C.S.)as a precondition for obtaininga trial? The informationyou have furnishedreflects that the question you have asked has arisen in several of the municipal and~justice bourts ofMontgomeryCountyunder the followingscenario.

'A,' a motorist, a resident of the state of Texas who is operating a vehicle licensed in the State of Texas, is stopped for speeding and issued a citation. AC the time of the stop, 'A'provides the informationrequiredby article 6701d, section 148and signs a written promise to appear in court which appears on the citation [sic]. Feeling that he is not guilty of the offense with which he is charged, 'A' asks the arresting officer how he can obtain a trial. In response to his request, the officer hands 'A' an information sheet on the letterhead of the municipal court for the appropriate jurisdiction. In addition to other information provided, the sheet contains the following:

If you wish to enter a plea of Not Guilty and desire a trial,youmust so indicate in the proper spacebelow. If you enter aplea ofNot Guilty, you must make an appearance bond for double the amount of your fine. Return the

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bond end a letter stating that you wish to contest the citation. if you wish to have a jury trialor not. . . . Section 148 of article 6701d,V.T.C.S.,provides:

(a) Whenever a person is arrested for any violation of thisAct punishableas amlsdsmeanor, and such person is not immediacrly taken before a magistrate eshereinbeforerequired, the arresting officer shallprepare in duplicate wrltten notice to appear in court containing thename end address of suchperson. the licensenumber of his vehicle, if any. the offense charged, and the time end place when and where such person shall appear in court. Provided, however, that the offense of speeding shall be the only offense making mendatory the issuanceof 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 shell not be mandatory for an officer to give a written notice to app&x in court to any person arrested for the offense of speeding when such person is operating e vehicle licensed in a stare or countryother then the State of T&as or who is a residentof e state or country other then the State of Texas, except 88 provided by the Nonresident Violator Compact of 1977. [article 67Old-231. (b) The time appear must be at arrest unless the earlierhearing. specified in said notice to least ten (10) days after such person arrested shell demand an

The provisions of section 148make itmandatory upon the officer to issue a notice to appear in court, where (1) the offense is speeding; (2) the arrestedperson gives his written promise to appear in court; end (3) the person arrested is nut operating a vehicle licensed in a state or county other then the State of Texas. Taylor v. State, 421 S.W.2d 403 (Tex.Crim. App. - 1967); cert. denied, 393 U.S. 916 (1968). Under the scenarioyou have provided, the solebasis for the requirement of an appearance bond is the election of the accused to enter a plea of not guilty. As was emphasized in Attorney General Opinion JM-363 (1985). articles 17.01 and 17.15 of the Texas Code of Criminal Procedure confer upon a court broad discretion in setting bail; however, it is

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our opinion that such discretion does not extend to an instancewhere the legislaturemandates chr issuance of a notice toappear in court. SUMMARY Where the accused meets the conditions set forth in section 148,article 6701d.Texas Code of Criminal Procedure, for mandating a notice to appear in court to answer a charge for theoffense of speeding, an appearance bond may not be required, solely because the accused makes it known to the arresting officer thar he desires to enter aplea of not guilty.

J&y&x AttorneyGeneralof Texas JACKHIGHTOWER FirstAssistantAttorneyGeneral
MARY KELLER ExecutiveAssistantAttorneys General JUDGE ZOLLIESTEAKLEY SpecialAssistantAttorney General RICK GILPIN Chairmen.OpinionCommittee Preparedby Tom G. Davis AssistantAttorneyGeneral

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