                                    May 18, 1987




      Honorable D. C. Jim Dozier         Opinion No.   JM-701
      Montgomery County Attorney
      Courthouse                         lb: Whether a magistrate may require
      Conroe, Texas 77301                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 viola-
                tion of a speeding law (under article 6701d,
  P             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




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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 men-
          datory 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 specified in said notice to
          appear must be at least ten (10) days after such
          arrest unless the person arrested shell demand an
          earlier hearing.

     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




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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 AttorneysGeneral

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairmen. Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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