                                The Attorney             General        of Texas
                                                     February 8, 1982
MARK WHITE
Attorney General


Supreme Court Bullding
                               Honorable Mike Driscoll                   opinion No. Mw-441
P. 0. Box 1254S                Harris County Attorney
Austin. TX. 78711              1001 Preston, Suite 634                   Re: Authority of justice court
512/475-2501                   Houston, Texas   77002                    to   dismiss   citations which
Telex 8101874.1367
                                                                         contain fatal errors
Telecopier   5121475-0266

                               Dear Mr. Driscoll:
1807 Main SI., suite   1400
Dallas, TX. 75201                   You have requested our opinion regarding the authority of a
2141742-8944
                               justice of the peace to dismiss traffic citations which contain fatal
                               errors, such as an impossible date or the failure to set a date for
4824 Alberta Ave.. Suite 160   the defendant to appear. We understand your inquiry to refer to
El Paso. TX. 79905             dismissal prior to the filing of the citation.
915!533aw
                                    Although article 45.17 of the Code of Criminal Procedure lists
1220 Dallas Ave., Suite 202
                               the requisites of a proper complaint, including -the date of the
Houstan, TX. 77002             offense, neither the Code of Criminal Procedure nor any other
713is500686                    statutory provision allows for the dismissal of a traffic citation
                               prior to its filing. Of course, since the Code of Criminal Procedure
                               applies to any case in justice court "in which a fine .may be
808 Broadway. Sulie 312
Lubbock. TX. 79401
                               assessed," article 4.15 of the Code of Criminal Procedure, the court
8081747.5238                   may grant a motion to set aside the complaint by virtue of a defect
                               therein. Code Grim. Proc. art. 28.04.
4309 N. Tenth, Suite B
                                    You also ask whether a proceeding under article 6701d. section
McAllen. TX. 78501
51218824547                    143A. V.T.C.S., kneed be entered on the docket of the justice of the
                               peace court. Section 143A provides:

200 Main Plaza. Suite 400                    Sec. 143A.   (a) When a person is charged
San Antonio, TX. 78205
                                        with a misdemeanor offense under this Act, other
512f225-4191
                                        than a violation of Sections 50, 50A, or 51,
                                        committed while operating a motor vehicle, the
An Equal Opportunity/                   court in its discretion may defer proceedings and
Affinnatlve Action Employer             allow the person 90 days to present evidence that,
                                        subsequent to the alleged act, he has successfully
                                        completed a defensive driver's course or other
                                        driving safety course approved by the court.

                                              6)  When the person complies with the
                                        provisions of Subsection (a) of this section and
                                        the evidence presented is accepted by the court,




                                                          p. 1521
-   .
        Honorable Mike Driscoll - Page 2 @W-441).




                  the court shall dismiss the charge against him.
                  When a charge is dismissed under this section, the
                  charge may not be part of the person's driving
                  record or used for any purpose.

             Article 45.13 of the Code of Criminal Procedure requires each
        justice of the peace to "keep a docket in which he shall enter the
        proceedings in each trial had before him." Article 45.13 makes no
        exception for proceedings under section 143A. It is therefore our
        opinion that a justice of the peace is required to enter on his
        criminal docket all proceedings pursuant to article 6701d, section
        143A, V.T.C.S.

                                      SUMMARY

                       A justice of the peace is not authorized to
                  dismiss traffic citations prior to filing, but may
                  afterward do SO.    A justice of the peace is
                  required to enter on his criminal docket all
                  proceedings pursuant to article 6701d. section
                  143A. V.T.C.S.




                                                MARK      WHITE
                                                Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        RICHARD .R.GRAY III
        Executive Assistant Attorney Cenerai

        Prepared by Rick Gilpin
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Susan L. Garrison, Chairman
        Jon Bible
        Rick Gilpin
        Barbara.Lipscomb
        Jim Moellinger
        Bruce Youngblood




                                           p. 1522
