Hon. J. C. Voyles, February 10, 1939,Page 2


         “6. If the Justice of the Peace, upon complaint being
    filed, issues a warrant for the arrest of the defendant and
    places It in the hands of the constable for service and the
    defendant at that time is at large by virtue of having been
    released by the License and Weight Inspector for the State
    Highway Department with instructions from said Inspector to
    appear in court at a later date and the defendant, in compli-
    ance with the instructions given him by the Inspector, is on
    his way to the courtroom or Is in the courtroom to answer the
    call of his case, is it legal for the constable at that time
    to serve the warrant on the defendant and charge an arrest fee
    therefor?

          "7 . Does a License and Weight Inspector of the State High-
     way Department have authority to arrest without warrant a person
     guilty of operating an overloaded vehicle?

          “8. Would the agent of a trucking company be guilty    of un-
     lawfully practicing law if he appears at court and enters   a plea
     of guilty for the driver or operator of one of the trucks   of the
     concern who has been arreste~dfor operating an overloaded   vehicle?"

         .Your letter reads, in part, as follows:

          "A License & Weight Inspector of the State Highway Dspartmsnt
     comes to Beaumont and enlists the services of two deputy constables
     to assist him in wsighlng trucks to ascertain whether or not the
     same are overloaded. In the event that the truck bears a state
     license and is found to be overloaded, it has been the practice
     of the License and Weight Inspector to give the driver or operator
     of the vehicle a ticket, which shows the registration weight and
     also the actual weight as found by the weighing of the truck. This
     ticket is signed by the operator of the truck and a notation then
     is made on the bottom of the ticket for the driver of the truck
     to appear in the Justice Court InBeaumont, naming the Court and
     date on which he is to appear.

          "As these weight inspections are usually held at night, the
     custom is for the highway Inspector to come into the Justice Court
     on the following morning and file a complaint on all vehicles found
     to be overloaded. Inasmuch as the driver of the truck has been
     released with instructions to appear at a later date, it has been
     the custom of the Justice of the Peace not to issue a warrant for
     the mans's arrest. In almost all instances where the driver is
     released on his promise to appear at a later date (~thesecases
     wherein the driver is released being cases where the truck is reg-
     istered in Texas), the driver very seldon, if ever, appears in
     Court on the date agreed to, but in lieu thereof, an agent of the
     trucking concern for which the driver works usually appears in the
     Justice Court and pleads guilty to the offense for the driver of
     the particular truck in question. Insome instances the plea of
     guilty is entered by the agent or by the defendant himself when
     neither the agent nor the defendant is in Court, the plea being
     entered by mail."
. -’

       Hon. J. C. Voyles, February 10, ,1939,Page 3


                 In snswar to question No. ,lithis Departent is,unable to find
       any provision for this procedure in the statutes for any violation of the
       highway laws other than speeding. You are respectfully advised that it
       is the opinion of this ~Depart~nt that the License and Weight Inspector
       for the State Highway Department of~Te*s does not have the authority to
       release a driver with instructions to appear in court at a later date.

                 With reference to question No. 2, We referyou to Article 884
       of the Code of Criminal Procedure of Teas which provides a.?follows:

                 "When the requirements of the preceding Article have
            been complied with, the justice ~&all issue a warrant for
            the arrest of the accused and deliver the same to the proper
            officer to be executed."

                 Therefore, In answer~,toquestion N&$,:.you are'respectfully ad-
       vised that it is ~the opinion of this'Department that after'the Justice of
       the Peace has accepted and filed a criminal'complaint, +t~is his duty to
       issue a warrant of arrest immediately.

                 With reference-to question No. 3, we refer youto the following
       authorities:,

                 ~Artlcle239, ,Codeof Criminal Procedure; a person is said to be
       arresixd when he 'hasbeen a&ally   place~dunder restraint.or taken into
       custody by.the offlcer'or~person exe+&%    the warrant of arrest.

                 The determination ~ofwhether~or not the driver was under arrest
       by the License & Weight Inspector depends upon the following issue of fact:
                         ..~,.
                                  :
                 "If the driver ,hadhave att,emptedto.le,ave.at'theft
            tini?the offictr,stopped.him wou,ldthenofficer have.per-
            mitted h+n to leave?"

                 You are respsctfully advised that it is the opinionof this De-
       partment that :if:the'above,questi,on
                                           be an&ered~.i&the 'negative,the driver
       was ,underarrest. If~the above ~questionbe answered ~in'theaffirmat&ve,
       the driver was not under arrest.,

                 A capias is not issued'by the Justice of the Peace.' See tiiqleS
       441 and 444, Code of Cr&lProcedure,      which refer to capiases, do not
       applyto Justices.of the.Peace. Warrants,of,arrest a&z issued by the Justice
       of the Peace.

                 You are respectfully advised that it .is,the opinion of this De-
       partment that under the circumstances'mentioned in question No. 3 tl?atit
       is within the discretion of the Justice of the Peace as to whether or not
       he shall ,issuea warrant fdr t,hearrest of the defendant.

                 With'raference to question No. 4, we refer'you to the following
       authorities:
Hon. J. C. Voyles, February 10, 1939, page 4


          Article 580,,
                      Code of Criminal Procedure, provides as follows:

          "In all prosecutions for felonies, the defendant must
     be personally present at the trial, and he must likewise
     be present in all cases of misdemeanor when the punishment
     or any part thereof is imprisonment in jail. When the record
     in the appellate court shows that the defendant was present
     at the commencement, or any portion of the trial, it shall
     be presumed in the absence of all evidence in the record to
     the contrary that he was present during the whole trial."

          Article 581, Code of Criminal Procedure, provides as follows:

          "In other misdemeanor cases, the defendant may, by con-
     sent of the State's attorney, appear by counsel, and the trial
     may proceed without his personal presence.'

          In Words & Phrases (2nd Ed.), Vol. l/at page 1082, we find the
following:

          'The word 'counsels as used in the Constitution, Art. 1,
     Section 10, providing that an accused has the right of being
     heard by himself or by counsel or by both, has a well establish-
     ed meaning and as there~used means an advocate, counsellor, or
     pleader, one who assists his client with advice and pleads ~for
     him inopen Court; and it does not mean one not admitted to
     practice law. Harkins vs. Murphy & Holans, 112 SW 136, 51T.
     C. A. 568."

          You will note that Article 581, Code of Criminal Procedure, pro-
vides that the defendant may by consent --
                                        of the State's attorney appear by
counsel In misdemeanor cases where a jail sentence is not imposed and the
trial may proceed without the personal presence of the defendant.

          Therefore, you are respectfully advised that in the absence of
the consent of the State's attorney, trial could not proceed without ~defend-
ant's personal presence. You are further respectfully advised thatit is
the opinion of this Department that it is not legal for the defendant to
be represented in the Justice Court, in such character of case, in his ab-
sence, by an agent of the company for which he works.

         With reference to question No. 5, we refer you to the following
authorities:

          Articles 580 and 581 of Code of Criminal Procedure, hereinabove
referred to.

          Section 8, p. 23, 4 Texas Jurisprudence, reads as follows:
Hon. J. C. Voyles, February 10, 1939, Page 5


           "Payment of.fins; -- 0ne:who has.pald.a.flns assessed
     againethimand costs in the trial court ,is not entitled to
     ~appeal. Thus fin an early Caseyitwas said.that the defend-
     ant '-havingtreated.the :matteras at an end, to~permit him,
     after havingrecognized the judgment.as valid and binding,
     to apply for a new trial, and this'being refused, to appeal
     would be.entirely Inconsistent.' But no person other than
     the defendantscan defeat his,right.to.appeal by paying the
      fine and costs assessed; the satisfaction of the judgment so
     as'to prevent an appeal~must come from the defendant or from
    .some one acting by his authority."

              Atkins vs. Woodward, Justice of the Peace, 241 SW 1117, holds:

           !'The'defendantin a criminal case~has'the right to.ap-
     pealj. even froma judgmsntof conviction on a plea of'guilty.
   / Yr.sny~case,:ofconvictionno other person ha9.the rightto.        ,~
     defeat an appeal by paying the amount.of-the fine and costs
     assessed. Fines in criminal cases are imposed for the purpose
  '- .of punishing.the.d.efendantfor the offense charged~,against
     him, not as a judgment for a sum of money due to~the~state.:~
     The satisfaction of the judgment so as'to prevent an appeal
    ~muat come f+om the':defenda& or admeone18laC&tigbyhis~authority."
                                      ,., .,       ., 'I:~, ;,
          'We findno.provision in the-,statutes~.whereby .a pleatof guU.ty,
canbe enteredbymail; but 'onthe contrary,.we find that in ,cases;where
the punishment can be by fine only, that the defendant may make hls.ap-.
pearance by counsel, provided the State's attorney consents to such pro-
cedure. owe flnd~from:tha authorities liptad..above,that:there~~the  defend-
ant rntere his plea of.gullt.and.pays his:fine fintheJustice:Court,:either
~tiperson or by someone d~rectly.y;authorized.byyhim;thenthe~,~defendant~
has waived his right of appeal from the conviction~in the Justice Court.

          Yoware respectfully advised that it.is the:opinion of this De-
partment that:a:'plea'
                     of guilttaken from the defendant himself.by mail or
taken from an agent of the company for whom the defendant works, even though
accepted by the Justice of.the.Peace and,agreed to.by the State's attorney,
would not'be'binding upon the defendant., You~are ,respectfullyadvised that
it is the .opinionof this.Department that if the.defendant,.acting for him-
self, by maili ,enteredhis plea of guilt and paid hls,fine in full to the
Justice of the 'Peace~and samewas ~acceptedby the:Justice of the Peace and
State's attorney, then.the::defendantwould have:waived his:right of appeal
from the conviction.    "    jl'1.

           Youw?e further .respectfully.advised,t~t It is the opinion of
this Department that if the defendant authorized another to enter his plea
of guilt in the Justice Court and authorized such person to pay his fine
fin Buch'Justtice~Courtand such person did pay his fine in the Justice Court
and same was accepted.by,:theJustice of the Peace and State's~attorney,,
then theedefendantwould have waived his,-rightto ~appeal,fromthe conviction.
Hon. J. C. Voyles, February 10, 1939, Page 6


          You are further respectfully advised that it Is the opinion of
this Department that if the defendant attempted to enter his plea of guilt
in the Justice Court by mail or attempted to enter his plea of guilt in
the Justice Court through an agent, or an attorney, and that the State's
attorney did not agree to waive the defendant's presence in court, then
in that event the court would not have to accept such a plea of guilt.
You are further respectfully advised that it is the opinion of this De-
partment that If an attorney representing the defendant attempted to enter
defendant's plea of guilt in said Justice Court, without the presence of
the defendant, and such procedure was not agreed to by the State's attor-
ney, then and in that event the court could not legally accept defendant's
plea of guilt.

          With reference to question No. 6 , you are respectfully advised
that it is the opinion of this Department that if the constable has in his
hands a warrant of arrest for the defendant, duly issued by the Justice of
the Peace, it is the duty of the Constable to arrest the defendant and
charge an arrest fee therefor.

          With reference to question No. 7, you are respectfUlly referred
to the following authorities:

          The Court of Criminal Appeals in the case of Head vs State, 96 SW
(2d) 981, has construed Article 827a, Sec. 6, Penal Coda, and In that opinion
held that only License & Weight Inspectors of the State Highway Department
have the right to arrest without warrant any operator driving an overloaded
vehicle.

          You are respectfully advised that it is the opinion of this De-
partment.that a License and Weight Inspector of the State Highway Department
of the State of Texas has authority to arrest without warrant a person guilty
of operating an ,overloadedvehicle.

          With reference to questi.onNo. 8, we refer you to Article 430a,
Sec. 2, of the Penal Code which reads, in part, as follows:

          “sec. 2.  For the purpose of this Act, the practice
     of law is defined as follows: Whoever (a) In a representa-,
     tive capacity appears as an advocate or draws papers, plead-
     ings, or documents, or performs any act In connection with
     proceedings pending or prospective before a court or a ~jus-
     tice of the peace, or a body, board, committee, commission
     or officer constituted by law and having authority to take
     evidence in or settle or determine controversies in the
     exercise ,ofthe judicial power of the State of subdivision
     thereof; . . ."

          You are respectfully advised that it is the opinion of this De-
partment that under the strict interpretation of Article 430a, Sec. 2 of
the Penal Code, an agent of a trucking company who appears .in court in a
representative capacity and enters a plea of guilt in the Justice Court
for the driver or operator of one of the trucks for the concern which has
Hon. J. C. Voyles, February 10, 1939,Page 7


been arrested for operating an overloaded vehicle will be guilty of un-
lawfully practising law in contravention with Article k30a, supra.

          We appreciate very much the able brief which you submitted to
us and which has greatly aided us In the preparation of this opinion.

           Trusting that this answers your Inquiry, we remain

                                      Yours very truly

                                  A!TTOFZNEY
                                           GENEFULOFTEXAS

                                    By.81 Wm. J. Fanning
                                          Wm. J. Fanning
WJF:AW:hep                                       Assistant

APPROVED

GERALDC.MANN
AlmxNEY-          OF TEXAS
