                                        The Attorney General of Texas
                                                               August   8,   1979

MARK WHITE
Attorney General


                                  Honorable George N. Rodriguez, Jr.           Opinion No. MW-41
                                  Bl Paso County Attorney
                                  City-County Building, Room 201               Re: Application of article 32A.02,
                                  El Paso, Texas 79901                         V.A.C.C.P., to traffic citations

                                  Dear Mr. Rodriguez:

                                         You have asked when a criminal action commences under the Texas
                                  Speedy Trial Act, article 32A.02, Code Crim. Proc., in the case of a traffic
4624Al-*.n-6UiWl6O                violation. Specifically, you have’asked’if the thirty day period begins to run
ElPaso.lx.70905                   when the citation is issued, or when a formal complaint is filed in municipal
61sM3464
                                  court.

                                        Article 32A.02, section 2(a), provides:
                                            _..,.       ._-     .~
                                               Except as ‘provided in Subsections fb) and fc) of this
                                               s-+iob acriminal action commences ._for purposes
                                                                                             ~.     of
                            .:.            :. this.. article   when: an ~Jndictment, informatig     or.
                                    _        ~complaikagaiust    the defendant ,is:filed,:in court,
                                             unless price to the fiing the defendant-its either
                                             detained in custody or released on bail or personal
41, N. Tmlh.     6uiu   P
                                             bon~~.to,answer -for the same offense or any other
s4cMm.lx.76sol                               offense arising out of the same trankction, in which
61-7                                         event .the arimhml action commences when he is
                                             arrested

                                        The answer to your question will depend on whether the peace officer’s
                                  stop of a traffic offender and issuance of a citation constitutes a detention
                                  in custody or a release on bail or personal bond.

                                         Various sections of article 6TOld, V.T.C.S., indicate the effect of a
                                  stop for a traffic violation.     When a motorist is stopped for a traffic
                                  violation, the stop is characterized by the statute as an arrest. V.T.C.S.
                                  art 6701d, S 148. Even though it is normally for only a brief period of time,
                                  the driver is detained in custody. V.T.C.S. art. 67Old, 6148(d) (when the
                                  driver files a promise to appear, the officer “shall forthwith release the
                                  person-arrested from custody”); Delaware v. Prouse, 99 S. Ct. 139lf1979) (a
                                  stop of an automobile and brief detention of its occupants is a seizure within
                                  the meaning of the 4th and 14th Amendments); 6 Tex. Jur.2d Arrest SS 1 and
                                                                                            i




Honorable George N. Rodriguez, Jr.          -     Page Two      (Mw-41)



20; cf. Newberry‘v. State, 552 S.W.2d 457, 461 (Tex. Crim. App. 1977) (after a traffic
viohZ& was stopped he was not free to leave).~    !

      A traffic offender may be permitted to leave on signing a promise to appear.
V.T.C.S. art. 67Old, S 148. If the arrest is for speeding, it is generally mandatory that the
arrested person be released on the signing of the promise to appear. & In many respects
the promise to appear is the functional equivalent of a personal bond. Compare V.T.C.S.
art. 6701d, S 148 fi  Code Crim. Proc. art. 17.04.      :

       We believe tha motorist who is stopped and ticketed for a traffic offense has been
 arrested and detained in custody. This reading is Eonsistent with the apparent intent of
 the statute. The Act is a remedial statute. and it should be &en a liberal construction to
 effe&its purpc&. City of Mason~v.-West’Texas~Utnities C& 237 S.W.2d 273 (Tex. 195D.
 The Act is designed to impose time limitations on the state as soon as the defendant
 enters the crimfnal j&i&system       to answer for an offense.      In the case of a traffic
 offense punishable by flne only, the defendant enters the system when he is arrested, and
‘the state is ‘required tibe ready for trial within 30 days of thattime. Of courSe the time
 at which ‘the. state’is required to be ready ~may be .extended by any’ one of the ten
                                             iall sec. 4flO) (providing for reasonable delay
 ~i?iE$g2mY’~~i~i~~                          We also note that beginning September l, 1979,
 the 30 day period.wiD be extended to 60 days. Acts 1979, 66th Leg., ch. 3, at 4.

                                           SUMMARY

             m.Speedy Trtal AC&-article 32A.02,. Code Grim. Proc., requires
             U&the stat& beready to try a traffic offensepunishable by fiie .
            ‘-only within 3Odays <of-the time the defendant -is estopped and issued
          ‘.‘-&~,,ket;$‘-‘:!:. ;~i :,         .’
                                                    .,.
               ..zL.;..
                     ‘,.~ ..~..~.... :. .~. ..,    : ~‘Verdrulv voursIc.   A
             s: .       _...,Z..‘,‘.   .“~ .,:     /



                                                     MARK WHITE
                                                     Attorney General of Texas

JOHN W. FAINTER, JR.
First Assiitant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by C. Robert Heath
and Charles Campbell
Assistant Attorneys General
Honorable G-e    N. Rodriguez, Jr.   -   Page Three   (m-41)



APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Tom Bulling&
Charles Campbell
William G Reid
