P 

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Honorable D. C. Jim Dozier 

Montgomery County Attorney 

Courthouse 

Conroe, Texas 77301 

May 18, 1987 

Opinion No. JM-701 

lb: Whether a magistrate may 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. 

Dear Mr. 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 obtaining a trial? 

The information you have furnished reflects that the question you 

have asked has arisen in several of the municipal and~justice bourts 

of Montgomery County under the following scenario. 

'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 information required by article 6701d, section 

148 and 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, you must so indicate in the 

proper space below. If you enter a plea of Not 

Guilty, you must make an appearance bond for 

double the amount of your fine. Return the 

p. 3246 
Honorable D. C. Jim Dozier - Page 2 (JM-701) 

bond end a letter stating that you wish to 

contest the citation. if you wish to have a 

jury trial or not. . . . 

Section 148 of article 6701d, V.T.C.S., provides: 

(a) Whenever a person is arrested for any 

violation of this Act punishable as a mlsdsmeanor, 

and such person is not immediacrly taken before a 

magistrate es hereinbefore required, the arresting 

officer shall prepare in duplicate wrltten notice 

to appear in court containing the name end address 

of such person. the license number 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 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 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 country other then the State of T&as or 

who is a resident of 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 

earlier hearing. 

specified in said notice to 

least ten (10) days after such 

person arrested shell demand an 

The provisions of section 148 make it mandatory upon the officer 

to issue a notice to appear in court, where (1) the offense is 

speeding; (2) the arrested person 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 scenario you have provided, the sole basis 

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 

p. 3247 
Bouorable D. C. Jim Dozier - Page 3 (JM-701) 

our opinion that such discretion does not extend to an instance where 

the legislature mandates chr issuance of a notice to appear 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 the offense 

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 a plea of not guilty. 

J&y&x 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorneys General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairmen. Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 3248