                            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 the peace may require
Austin, Texas 78701                          that a defendant appear
                                             in person before a traffic
                                             case can be disposed of.

Dear   Mr.   Pipk,in:

     You have requested our opinion regarding the meaning of
"appear in court" as that phrase is used in sections 148
and 149 of article 6701d, V.T.C.S., the State Traffic
Regulations.  Those sections provide:

                 Sec. 148.   (a) Whenever a person is
              arrested for any violation of this Act
              punishable as a misdemeanor, and such
              person is not immediately taken before a
              magistrate as hereinbefore required, the
              arresting officer shall prepare in duplicate
              written notice to appear 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 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 shall not be
              mandatory for an officer to give a written
              notice to appear in court to any person
              arrested for the offense of speeding when.such
              person is operating a vehicle 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. 4012
The 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 a magistrate within the
          city or county in which the offense charged
          is alleged to have been committed and who has
          jurisdiction of such offense.

              (d) The arrested person in order to secure
          release as provided in this section, must give
          his written promise so to appear in court by
          signing in duplicate the written notice pre-
          pared 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 the person arrested,
          from custody.

              (e) Any officer violating any of the pro-
          visions of this section shall be guilty of
          misconduct in office 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 this Article, is guilty of a
          misdemeanor regardless of the disposition of
          the charge upon which he was originally arrested.

                (b) A written promise to appear in court may
          be    complied with by an appearance by counsel.

Specifically, you ask whether a person may satisfy the "appear
in court" requirement of section 148 by contacting the
appropriate justice of the peace by mail or by telephone.
You also inquire whether a defendant, acting through his
attorney, may plead not guilty by telephone and subsequently
mail an appearance bond to the justice of the peace.

     In civil cases in Texas, it is well 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.. -- San Antonio 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, no writ); Staley v.~ Western Steel Wire
                                                        --   & w
        co., 355 S.W.2d 565, 567 (Tex. Civ. App. -- Dallas 1962,
        writ ref'd n.r.e.).   It might be argued, however, that,
        under section 148, a defendant's execution of a written
        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 sa written promise to appear in court may
        be complied with by an appearance by counsel."

             Section 150 provides that sections 148 and 149

                    shall govern all police officers in making
                    arrests without a warrant for violations of
                    this Act;but  the procedure prescribed herein
                    shall not otherwise be exclusive of any other
                    method prescribed by law for the arrest and
                    prosecution of a person 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, but may accord with article 27.14 of the Code of
        Criminal Procedure, which provides:

                          A plea of 'guilty' or a plea of
                    'nolo contendere' in a misdemeanor case may
                    be made either by the defendant or his
                    counsel in open court; in such case, the
                    defendant or his counsel may waive a jury,
                    and the punishment may be assessed by the
                    court either upon or without evidence, at
                    the discretion of the court. ---
                                                  In a mis-




        (Emphasis




                                   P. 4014
.   -

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



             Article 27.14 indicates that, in any traffic offense
        "for which the maximum possible punishment is by fine only,"
        which embraces every offense within the jurisdiction of a
        justice court, a defendant may plead guilty by paying a
        fine or by paying "an amount accepted by the court."   In
        our opinion, as soon as a defendant 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,e an appearance in the courtroom simply
        by refusing to set the amount of the fine by mail 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, a defendant has entered his plea and thus "appeared"
        when the justice has received and accepted the payment tendered.

             If the defendant mails a written 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 a plea.
        In such case, he is apparently still obliged to fulfill his
        written promise to appear in court, which may be satisfied by a
        personal appearance on the appointed date or by an appearance
        of counsel.  If the defendant wilfully violates that written
        promise, he is guilty of a misdemeanor under section 149(a).

               Your second question is whether, 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 for pleas of
        guilty   in misdemeanor cases, it is more restrictive regarding
        pleas of not guilty. Article 27.16 provides:

                  The plea of not guilty may be made orally
                  by the defendant or by his counsel in
                  open court.  If the defendant refuses to
                  plead, the plea of not guilty shall be
                  entered for him by the court.

        In our opinion, a defendant who promises to "appear in court"
        pursuant to section 148, and who wishes to plead not guilty,
        must do so "in open court," either personally or through




                                 P. 4015
.   -

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



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

                               SUMMARY

                    A defendant who wishes to plead guilty may
                    I,
                     appear in court" for purposes of section
                    148 of article 6701d, V.T.C.S., by mailing
                    payment of a fine set by the justice of the
                    peace. A defendant who wishes to plead
                    not guilty under section 148 must do
                    so in open court, either personally or
                    through his counsel, but the magistrate
                    may arrange for disposition of the case
                    on a single appearance on a date other
                    than that specified in the original
                    promise to appear.

                                         Very truly yours,


                                       ,,,',. C‘ /- 2h
                                          OHN L. HILL
                                         Attorney General of Texas
                                  /'
                                  -7
        APPROVED:




        c. ROBERT HEATH, Chairman
        Opinion Committee




                                    P. 4016
