                    The Attorney                     General of Texas
                                           January     20.   1982
WHITE
ty Generu



 -wing
                 Ms. Elizabeth 5. Jaadc                                  Opinion    No. W-428
t 12549          Guadalupe County Attorney
‘X. 79711        105-A North Auocin                                       Re: Interpretation       of article
901              Scguin. Texu     78155                                   67016, section    143A: Questions
n74t367
                                                                          rel&tlug  to “defcaaive      driving
Y 612n794266
                 Xr. John T. Xontford                                     couru”     .a    alternative        to
                 CrifAfnal oiuricc  Actoroey                              court proceedinga
~St,SUtWWOO      Lubbock Couacy Courthouse
C7saol           Lubbock, .Texas   79401
944
                 Hr. ?Iauricc     S; Pipkin
Ia*AW”Suit*160   Executive      Direcco;
rx.799ns     -   State C-salon     on ~Judicial
tbl                  c&duct
                 211 Rugao Euilding
                 P..O. Box 12265
                 Austin.   Texu   78711

                  Dear Ha. Jandc       and Heasrs.         Moatford   and Plp!in:

                          You have    tcqueated      oar opinion      on the. queatloaa      llated   below
                   relating    to procedurea     used by muolcipel~ and jurtice court judges              in
                   thin ltata ia.~le~oclng               thk provisione of the Texee ecatute          vhlch
                   permits    l.pereorr ehrrgcd~ vith”a          misdemeinor   offense   ,related   to the
                   oper,ation   bf i wtor      vehicle      td -take a “defeimlvc    driving     couue” or
                 .~“driving     ufety    ~courua      ii~ “Lieu of ptoeecutfon        qd   further    court
                   proceedioge     lr lsina  from the offeore.

 PlUrsutt*rod
 s.Tx. 7uo5
                         Tlic etacuca 10 quemtioa. e&on.l43A  l
                                                              of lrclile 670ld. V.T.C.S..
                  rud6    as follove:
  91
                                 .                                * I
                               DISXISSAL O? CERTAIN ltISOMWtON     CN4RCW UPON
                               COXPLETINCDRIVING SAFETY CGURSL. .

                                      sac. ‘14%      (a)    Nhen a parsoo ie charged
                                vith  a dideseenor     offense   under thie Act. other
                                then a violetion     of Sactioo SO or Sl. emitted
                                while opericiag    a motor vchlcle.   the court:

                                        (1)    in    lta   dfscrecion Roy defer proceedings
                                and    ellow   the     person 90 days to prwenc    evidence
           CtwC. aubaaquanc  to cha .ll.g.d      act.  th.    parson
           has .succcsafully completed     a defensive     driver’s
           couraa lpprovad by the Texss Dapartmant of Public
           Safety or other driving   safety  course approved by
           cha   court;      or


                  (2)   shall   defer   proceedings                        and   ellav     the
           parson 90 days to present         written                       evidence     that,
           subsequent     to chc alleged      act,                       the person        haa
           successfully      completed   a driving                          safety     course
           approved by the court.      If:

                   (A)     the     parson     presents         to      the court     an oral
           request        or written         aotlon        to take a-course:

                   (5) ‘the peiaoa     has                 a   valid      Texas    drlvar’a
            license   or permit;   end

                  (Cl             the     peraon’8       drlviog      record      as
           malnrsined             by the      Texas     Dapartwnt      of    Public
           Safety doea             not Indicate      succeaeful    colnpJition    of
           ,a driving            safety    *course    under this     ~acibdlvision
           within     the          cvo ycers      iasnadietely    preceding      the
           date of the            alleged    offense.

                  (b)     When the     person    coinplles    with  cha
           provisions     of Subeecrloo     (a) of this    section  and
           zhe   evidence   presented    is accepted     by the court.
            the court shall dismiss      the charge.

           .Uhcn a charge Is d&seed              under this       UCC~W. the
            charge may not be part of cbc detson’s                      ‘driving
            record    dr used        for aiy purpose.         but the       court
            ihall     report       the    fut      that      l    p er 0 0 0   hu
            eucceaafully       completed a driving ufety             course and
            the dote of completion           to the Texas Oepartaent of
            Pal, I Lc Safety.. ~for inclusion            in     the     parmon’i
            drivt”$:     record.       The court      shall      note in       it0
            rcwct     ~dmtbar       tbC course      vas    taken     under     the
            pmccdurc          provided      ~by Subdfviaion             (2)      of
            S~ub~ccha (aj of this            seccioti   for the purpose          of
            providing        information       necessary       to      determine
            llWbility         to teke   l subsequent      edurse under that
            subdlvislon.

      The questions        Presented         by you ralaclng   co the                interpretaclon   and
ioplamcntation    of      this     statute     art as follows:




                                                      P.    1456
nr.  Elizabeth   C. .Inndt
Iir. John T. Iioncford
Hr. Haurice    S. Pipkin
 Pa&e 3 (mr-428)




                   1.  It a court    (municipal    or juarlca    court)
            re;uircd   Co give a go-day deferral       for l defendrnc
            to   Cake a dafensivc    driver’s    course.   es provided
            In section 143A(a)(2),      ac any time that a moc,lon
            is uada by che.dafendent          to cake such a course
          _ (assuming   thac.tha  dafendanc is aliglble)?

                    2. -At uhsc polnc.      if ray. ~ln .a .mlsdemeanor
            traffic    offense proceeding could the judge refuse
            a motion        to allow     the   defendant    to   take    a
            defensive      drlvar’s-  Course and hsve hit       citation
            dlsmlssed     under article    6701d. section 143A(a)(2)?

                  .3. Hay a judge require  a dcfandsnt    to cntar
            s plea of guilty     or nolo contendere    before the
            judge will allou the defendant to cake s defenslva
            driver’s  court  under either subsection    1 oi 2?

                  4.       Usy s judge   require    the defendant       to
            pieseut      s copy of the Texas Deparcuent         of Public
            Safety’s      spproval of the defensive    driver’s    course
            before      the judge yill    lllov   .the indivldusl      ‘to
            register     for   s particular    course?

                    5.   ‘Hay the judge require    e defendant    to
            provide     to the court a notarized    svorn statment
            actestiag CO the fact Chet the dafendau$ haa not
            coslpleced     a defensive, driving course   vichln the
            put      tvo years for      the purpose of hsving      a
            cltstlon     dismlssedt                             .,

                    6.   What steps.msy        a judge take efrer the
            ainety-day      period,    vhlch the defendsnc       vi8 giveo
          -to     complete     a defensive      driving  course.    if   the
            defendsnt      ‘did oat then supply         the   court    vith
            vritten    evidence     that   he lo facts did complete      the
            cours.e?

                  7.   18 .lt uaechiul    for s judge co sdvfse a
            party   vho requests     tnfonrtlon   on ihe  scste’s
 .          dcfcns(vc dr,iving lsv so to the steps necuury      co
            comply vlth lectlon 143AT

                  R. .. Liay a judge         require  the dafendanc to
            perronally     sppaar in hit court to sstisfy           my of
            the     raqulrananCa         set     out   1”    this     act? .
            SpecIficaLly.       lfear    a defendant     hat   taken   the,
            dafanslvc     drlvar’a    course.    may a judge damand the




                                                                  -./
                                        .     1(rs’)
              prcscnrac1on of rile Co”rBf complctlcn certificate
              In pcrcon or may it be mailed to the court vithln
              tbd required clme limit?

        This   office   hcs In an earlier     opinion determined     that   the statute
 In    qucction.       scctlon     143A   of      article   6701d.      V.T.C.S..       lm
 conscltutlonal       ld    that It does not impcrmicslbly          lnfrlngc      on the
 dlccrctlon      of c judge    before whom a misdemcsnor       traffic     offense    haa
 been brought.        See Attorney    Central    Opinion W-185 (1980).           In that
 oplnlon.    Ye stated:

                      (Ilt     lc well established           that    the ltglslaturc
               my. glut         judges      rcaponslbilltlcs           which   do not
               require      the cxcrcisc        of judlclal       discretion.       See
               JamsKIn v. Garrett, 69 S.U.Zd 51; (Tcx. Clv. G.
               -. Tcxarkmic 1934. -wit             rcf’d);      Koll v. State.       157
             ‘,‘$U.2d..377       (Tax;‘-Crla.      App.    - 1941).     . A judge    may
               be assigned         sialettrlal       duties.       vhlch a& duties
               prcccrlbcd        and defined       vlth     such precision        as to
               lcavc      nothing..rp:       tbc lxcrciee         bf dlccrctloa       or
              jtdgment;       Jmoiglo~      V.    Garrett.     M.          Once the
             defendant      complies vi,@ the three cond5tidas   under
             ~sactlon     l&i(a)(2)..-  we btllevc   the court’ has a
             ~ministc.rial    duty-to  dismiss  the charge.

        Ulth   rcgsrd    to your ,flrst     question..   dcferrdl    of 6 court’n
 proceedings     under             143A(a)(2)
                          ltc tio n.              1s mandatory.    and   the Q&day
.pcrlod   should run fron the date the dtfeadanr’s         written   or oral motion
 lr~granted;     .Seccioa 143A(a)(2) Lo specific       on thlr point.

     -Your    s&and       questi&      addresser       the tiarc llolt~.      if      any.      within
which a defendant         can elect      to tokc     the dcfcnslvc    driver’s        course.

       The stpk&~-vas~:          intended     by the legislature’         to provide        an
cltcrneti~e       tq    the procecutlon        and .‘trial      of 8isdcmcanor      trcffic
offcares.       ~e~,ksptloa     of :the roektlng lct lteted: ,“[aln Act relating
to a. drivlnp        .qofety    eoutac    le ‘aa‘ altcmctlvc         to prosecution       for
certala traffic        offenses....”       Aete 1979. 66th kg.,         chi 610 at 1359.
It is clear from the rtctute, thst once a prrson 16 “charSed” with the
offence.      Chc court      uy     or. shall    (dcpendlng~ on the iircuastances)
“def lr proceedings” to lnow a. defend-t                    to conplate the courcc and
thereby halt further court pioeecdlngs..                 We belfeve, haueverr that the
logicsl     conctructlon     of the ccatute       fm thrf     once the dcfcndant      or his
eounrel     has announced      thct’hc    is ready for trial, and once. the trial
(before     the court      or before a jury)         has cownced.       the option     under
section     143A to take the driving          course    lo no lohgcr available        to the
defendant, and the court my properly                 refute   l srotlon by the ‘defendant
to take       the .dcfcnslvo       drivcr’c     course.       By going     to  trial.     the




                                           p.    1458
Mm. Ellsobeth  C. Jsndt
Mr. John 1. flontford
Hr. Maurice s. Plpkin
Page 5 (tlu-4.28)



defendant        hqe  chosen   to  forego   the defensive  driving   coutee               se   en
eltcrnetive        means to dlepoee    of the charge brought against   him.

        In answer     to your third        question.        it would be Improper for e
judge     to require      a defendant        to enter         e plee    of guilty       or nolo
contendere      before     the defendant         le elloved        to take the dcfeneivc
driver’s    ooursc.       In cnectlng       section      143A, the lagielarurc           clearly
established      the   completion        of a defensive           driver’s     course      as en
alternative       to court      prosecution       for minor traffic           offenses.       The
cxpllclt     language      of the statute           la that      the court       “shell     dofcr
proceedings”       (section      143A(s)(Z)).          It vould .bc a violation             of e
defendent’s      constitutlonel        rights.     es well as prlvllcgcs            grented      by
the legislature       under this etetute.          for a judge to require          e defcndent
to enter luy plea In exchange for exercising                     thc’optlon     prescribed       In
section     143A(c)(Z).         The ltetutc           cleerly     mskcs     the defendant’s
cxcrclee of ‘the section            143A(c)(Z)      option     en lltcrn~tlvc       to furthcr
court proceedings        end clininetes        the necessity       of entering 3         plea es
a prccocditlon.          Further,     the court can never force lny plce co be
entered by a defendant;           if no plea Is entered,            the court must enter a
not. gullty    plee.     Tcx.   Code Crln.      Proc. art. 27.16(a).

       In anever to your fourth question,           UC hevc earlier    eoncluded.thet
the texes    Department of Public Safety,          hcrclneftcr   referred    to ee.the
DPS. hee authority       tc? llccnec   all driver      trelnlng   lchwle,    including
those that    provide   the defensive     driver’s    course +thorixcd      by section
143A. kc Attorney Ccncrel .Oplnion W-16 (1979).                  Yhle question      asks
vhcthcr~      defendant     exercising    hie option. lue l burden of proving
bcforeheud     thet   the dcfcneivc       drlver’s-    courie   to be taken under
ecctlon   143A hes bccn~ “epproved” by thc~ DPS.

       Theatetutc   trenefcrs      no .euch burden     to the defendent.         In
Attorney  General  Opinion t¶U-18s (1980) WC Interpreted           the follwing
words in ecc~lon 143A(b):       “...and   the evidence   preecnted    1s lcceptcd
by the court.”    WC stated   there:            ‘~
                                                                           .
                 You suggest’ that this provlelon                refer0 to common
               - law rules       of cvldcncc       and meane that          the judge
                 muet edoit       rhe evidence        prcecnced     by l dcfcndent
                 unless      there    1s en objection           to it.,      llcmcver ,
                 lcctlon      143A(b) uece the t&cm ‘ecceptid’ rethcr
              ._ then       ‘admitted.           lforcovcr.        since       ~wctloa
                 143A(e) (2). l    pclle   out the kind of evidence              which
                 dcfcndent      must prcscnt.       the judge need not rule on
                 ~rclevency.        He need only dstctmlnc              vhethcr     the
                 cvidcnce      conform to the rcqulrcnentc                of section
                 143A(a) (2).       We believe        the language       you Inquire
                 lbout     contempletce       that     the  judge-will       cveluetc
                 the    evidence     presented      by the     defendent       that he
              has successfully   completed en epproved    defensive
              driving   toursc  end accept It if       in  fact     it
              cornpIles vith the statutory rcquircmente.

       Thus.    following      our   prior    rceeonlng.     WC conclude        that section
143~ does not place any effirmetive                 burden of proof on the defendant
to present       to the court          proof of completion        of the        course     in J
specific     fora.   such    se  vrltten     proof   from   the  DPS  of    its   approval    of
the course       taken.      Defensive     driving     schools   customarily        provide    a
certlflutc       of completion        to persons uho -have succtssfully              completed
the course.         A judge. should         evaluate     the evidence Of a completed
course presented        by defendants        on a case-by-case       basis.       The statute
dote not provide          for a judge’s        prior    approval   of the course to be
taken.

      In ansvcr to your fifth           question , we similarly        find no language
in scccion      143A which would permit           a judge     to speclflcelly        reaulrc
submission     of e noterlrcd       svorn’statement      attesting     to the fecc chat
the .defendent      has not completed         a driving     safety   couree within, the
prior    tvo-ycer     period    as a precondition         to dismissal        of chergee.
Subedctlona~ (A), (B) and (C) of section 143A(s)(Z)                    recite     the three
fnrms of “written        cvldcncc”~vhich       the defendant     must present       to prove
compliance      with      the   statute.        The   judge      must    evaluate      on a
case-by-cast      basis    the evidence    presented    by the d+fendant       chat he has
complied vlch subsections          (A), (lb) and (C) of the statute.

       As co question        six.    the judge mey take a number of customary
acciona    if    the defendant         falls     to complete    the course     within     the
go-day period        and falls-.to       presetit such proof       to the court.        These
Include setting        the meter      for.trlal,     acceptance and filing      of failure
to iippcer      chergce.      Issuing       an .arreet    uerrant.      or other     actions
permitted     by lav.     as   If’ the    defendant    had  never    elected  to   take    the
defensive     dtlvcr’r    course under section          143A.
   . . . .
       AR   .‘to quentlon    seven.         It ,would not      be a ‘vloletiori     of judicial
ethics’     for e judge     to     advise      a defendant      of his option       to take the
driving     nafcty course.           The right .to take the course has been granted
by the lcglrfocurc            to defendants,       In aledc.mcenor traffic       ceses.   end it
Gould. not be uurthlcsl                for a jud,gc ,to advise          a defendant      of the
spcclflc      stcpe ncccse~ty to comply with the statute.
                                                               . .
           ‘. .
      .Uith     regard     to    question      eight . tic find no 1IWIgUAge in SeCtiOn
143A .uhleh       uourd       permit     a. judge     to requite      that     a dcfendnnt      bc
physically       present       la his court pcteonelly             to present      the “written
lvldcncc”       of comp)iencc          vlth     subecctlone      (A),  (B) and (C).         Under
currcnC       etetutcs        and     ptsctlcc.       a defendant        can    dispoee    of    e
misdemeanor        traffic       citation       without     ever personally       lppeerlng     in
court.      A-defendant         can enter      a ples’by     mall ot’through      his ettorney.




                                        p.   1460
Ms. Elizebech  C. Jandt
Mr. John T. f%-itford
tic. Maurice S. Plpkin
Page 7 (ml-426)



see.   Ttxsfi  Code of Criminal          Proctdurc.      articles      27.14    and 27.16:       the
Grt     can set.an     appemmce        bond aa vcll as an appeal bond without                    the
defendant’s      presence,     article     27.14(bj;      and the defendant           can file       s
notice    of appeal      for trisl       de novo without           personally      appearing       ln
court.    article     44.13     et.    seq.     See also        Attorney      General     Opir.lon
H-1203 (1978)       (dlscu,sslng      articles      33.03 and 33.64,          Tex.    Code Grim.
Proc.. the latter of which petnice               certain      criels     in misdemeanor      cases
in the absence      of a defendant).

       These      stetuteq           a policy
                              dawnstrace          by the legislature          to permit
the   disposal       of minor          traffic
                                miadcmeenor        offense    cases lo the absence
of rhe defendant,        vho Is permitted      by    these     8tscutes     to appear
personally     or by counsel   end co conduct      some or all       of the case by
mall, without      the inconv nience of being forced to drive             hundreds of
miles   across    the state I o be present      during     varlou8     6tares    of his
proceedfng.

      Similarly.      ve conclude     that    section      14% does not compel nor
authorize    a .judge co require      the presence       of the defendant     to, “prove
up”   hie   coipllance      with   the three      requlremeat~     listed   In section
14%(a) (2).      “Written evidence”        la sufficient      under the statute     when
the defensive       driving     ~completloa    certificate      la presented     by the
defendant    by mail.

                                                SUMMARY

                       1.   A, judge    must pet-air   a defendant  ~to take
                 the defensive     drlver’s~ course in every ease’vhere
                 e motion to take the course Is properly           -de   end
                 where  the defendant      1s l~lglble   for the courae.

                       2.  The defendant    msy exercise   his right    to
                 elect  to trke the defensive   dtlver’a  course at any
                 time prior    to commencement of hla trial        on the
                 ehergea brought.    If he bee not done eo. the right
                 to take the driving     course  le an alternative      to
                 court proceedings   Is no longer available    to him.

                        3.    A, judge   mey not    require   a defendant       to
                 enter any plea as’s precondition           to ~pernlttlng    the
                 defendant     to elect    to take the defensive       driver’s
                 course    under   lectlon   143A(s) (2).

                          4.        A   ,‘judge MY not require   e defendent          who
                 c~ects        to       take the defensive   driver’s   course         to
                 prow    CO the  court  beforchend              thee   the   course    he
                 tntendu    to   take   bee     been             approved     by      the
                 Deprrtmcnc   of Public  Safety.




                                                    p.   1461
?ra. Elirrbcth  C. ,Jnndr
Mr. John f. Honcfard
Hr. tl;lurlce S. l’lpkin
Page 8      (W-WI)



                    5.   A judge has no specific.        authority     under
             se6tlon    l43A to require    submission     of a notarized
             svom statement       by the defendant    atteocfng     that he
             has    not    completed    onothcr    defensive       driver’s
             coume vlthln      the prior tvo-year     period.

                    6.   Where a defendant     fsils to complete   the
             defensive   driver’s   course und fails   to comply vith
             the provisions     of #action 143A after being granted
             permission    of court,     the court mny proceed vlth
             prosecution    of the chsrges   6s If the defendant   hsd
             never elected      to or been permitted     to take the
             course.

                    7.   A judge  uy     advise a defendant         of   the
             speclf ic    Actions     necessary    to  fulfill           the
             requlrcments    of lectioa 143A(a)(2).

                   8.  Section   i13A doea sot permit      4 judge t’o
        f    require  that    a defendant   ‘personally     appear   in
             court to present    “vrltten  evldeuce”    of completion
             of the defensive   driver’s  coume.




JOHN-U. FAINTER. JR.
First Aarl8cant Attorney Central              .

RICHARDi. GRAY III
Executive Aoristant       Attorney   Ceneml

Prepared    by Richard    W. Mayer
Asalotlnt    Attorney    Central

APPROVED:
OPINION COtMI~RR

Surnn  I.. Garrison,     Chairman
Rick Cllpln
Nlchord W. Heyer




                                        p.    1462
