                        The Attorney               General of Texas
                                             March 1,    1978

KIHN L. HILL
rdttorney General

                    Honorable Patrick J. Ridley                     Opinion No. H- 1138
                    County Attorney
                    Bell County                                     Re:     Construction   of the Speedy
                    P. 0. Box 474                                   Trial   Act.
                    Belton, Texas 76513

                    Dear Mr. Ridley:

                            You ask three questions about the application of the Speedy Trial Act to
                     a trial de novo in county court following a conviction in justice or municipal
                     courts.   The justice and municipal courts have jurisdiction         in misdemeanor
                     cases where the fine does not exceed two hundred dollars. Code Crim. Proc.
                     arts. 4.11, 4.14; see Penal Code SS l.O7(a1(141, l.O7(a)(211, 12.23. In appeals from
                    these courts to the county court, “the trial shall be de novo in the trial in the
                     county court, the same as if the prosecution had been originally commenced
                     in that court.”    Code Crim. Proc. art. 44.17. A portion of the Speedy Trial
                     Act, article     321\.02(4) of the Code of Criminal         Procedure provides for
                     dismissal of the complaint if the State is not ready for trial within “30 days of
                     the commencement         of a criminal action if the defendant is accused of a.
                     misdemeanor punishable by a fine only.”       You ask when the criminal action
                     commences in cases of appeal to the county court for a trial de novo.

                           A defendant who appeals to the county court for a trial de novo has
                    presumably had a speedy trial pursuant to article 32A.02 in the lower court.
                    Article 32A.02 provides for a speedy trial, not a speedy appeal. However, the
                    appeal from a municipal or justice court vacates the conviction and transfers
                    the charge to the county court as if originally filed there. Code Crim. Proc.
                    art. 44.17; McIntosh v. Watts, 5 S.W.2d 1003 (Tex. Civ. App. -- Waco 1928, no
                    writ). The fact that the trial de novo is part of an appeal process should not
                    exempt it from the speedy trial provisions, which apply to retrial following
                    appeal as well as to the first trial.  In our opinion, the trial de novo in the
                    county court is subject to~the requirements of article 32A.02.

                          The provisions of article 32A.02 describing the commencement        of a
                    criminal action do not provide an answer to your question. The Act provides
                    that a criminal action generally commences when an indictment, information,
                    or complaint against the defendant is filed, or when he is arrested to answer
                    for the offense, if earlier. No information is required in the county court on




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Honorable   Patrick    J. Ilidlcy   -   l’W!   2    (H-1130)



appeal   from a justice court conviction,    Knecdlcr v. Stnte,, 99 S.W.2d 605 (Ter.
 Crim. App. 1936), and a defendant arrested following trial in the lower court is
arrested pursuant to a conviction and not to answer for the offense,        see Code
Crim. Proc. arts. 44.13, 45.51. The general rule thus dots not apply to thecase you
inquire about.   Exceptions for retrial following mistrial, an order granting a new
trial, appeal, or collateral  attack do not apply either.     Code Grim. Proc. art.
32A.02, S 2(b).   We therefore turn to the criminal code provisions governing the
trial de novo to determine when the criminal action commences in county court.

       The appeal to the county court is perfected when the defendant files a valid
appeal bond.    Code Crim. Proc. art. 44.14. At that point the judgment of the
inferior court is superseded, and the county court acquires appellate jurisdiction.
Deal v. State, 423 S.W.2d 929 (Tex. Crim. App. 1968); McNamara v. Druse, 26 S.W.
506 (Tex. Crim. App. 18941. The justice no longer has authority over the case,
except to send it to the county court.    Page v. State, 9 Tex. Ct. App. 466 (1880).
 Accordingly, we believe that the requirement of a speedy trial in cases involving a
trial de novo begins when the defendant files a valid appeal bond.

       You also inquire about the application of article 17.151 of the Code of
Criminal Procedure to a defendant who has appealed to the county court.    This
provision states in part:

               Section 1. A defendant who is detained in jail pending
            trial of an accusation against him must be released either on
            personal bond or by reducing the amount of bail required, if
            the state is not ready for trial of the criminal action for
            which he is being detained within:




                        (4) five days from the commencement of his
                      detention  if he is accused of a misdemeanor
                      punishable by a fine only.

You inquire when the defendant’s        detention    begins within this provision.

       There are two ways to give the county court jurisdiction of an appeal from
the justice court.    Guenzel v. State, 80 S.W. 371 (Tex. Crim. App. 1904). The
appellant can file an appeal bond, in which case he is freed from custody.       Code
Crim. Proc. art. 44.13; see art; 44.16; Chatfield v. State, 47 S.W.2d 315 (Tex. Crim.
App. 1932). If this happens, he has not been detained and need not avail himself of
the provisions of article 17.151. In the alternative,  he can remain in the sheriff’s
custody. Burt v. State, 186 S. W. 770 (Tex. Crim. App. 1916); Guenzel v. State, M.
In this caqis     detention begins when he is actually taken into custody following
conviction.   See Code Crim. Proc. arts. 45.43, 45.51. If the State is not ready for
trial within rive days from the beginning of this detention,     he is to be released
under the provisions of article 17.151, section 1.




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Honorable Patrick   J. Ridley     -   Page 3    (H-1130)




       You finally inquire about the amount by which article 17.151 requires the bail
to be reduced. That provision states that the defendant must “be released either on
personal bond or by reducing the amount of bail required . . . .‘I In our opinion, the
bail must be reduced to an amount defendant can pay and thereby secure his
release.   The amount of reduction necessary to release the defendant will depend
on the facts of each case. A token reduction of one dollar will not comply with this
section’s requirement that defendant “be released . . . by reducing the amount of
bail required.”

                                      SUMMARY

            A trial de nova in county court following conviction          in
            municipal or justice court is subject to article 32A.02 of the
            Code of Criminal Procedure, providing for speedy trials of
            criminal   charges.    The criminal   action commences       for
            purposes of article 32A.02 when the defendant files a valid
            appeal bond.     The defendant’s detention,     for purposes of
            article 17.151 of the Code of Criminal Procedure begins when
            he is actually taken into custody following conviction in the
            municipal or justice court.     The article 17.151 requirement
            that defendant “be released . . . by reducing the amount of
            bail” means that bail must be reduced to an amount he can
            afford to pay.




APPROVED:




C. ROBERT HEATH,       Chairman
Opinion Committee

jst




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