                  THE     ATTORNEY          GENERAL
                              OF   TEXAS

                             March   7, 1988




    Honorable Frank Hill                       Opinion   NO.   JM-869
    Kendall County Attorney
    207 E. San Antonio Street                  Re:    Whether a "ticket"
    Boerne, Texas   78006                      given to a defendant   may
                                               serve as the complaint  in
                                               a trial de novo in county
                                               court (RQ-1196)

    Dear    Mr.   Hill:

            you ask whether a "ticket"  given to a defendant  may
    serve    as the complaint in a trial de novo in county court.

          Section   (d) of article 27.14 of the Code of  Criminal
    Procedure,    as amended by Acts 1985, 69th Leg., ch. 87,   at
    514, effective    September  1, 1985, provides:

                  If written notice of a traffic          violation
              for which maximum possible punishment            is by
              fine only or of a violation        relating to       the
              manner, time, and place of parking has             been
              prepared,    delivered,     and    filed    with     the
              court and a legible duplicate        copy has      been
              given to the     defendant,    the dunlicate       cony
              serves as a complaint      to which the defendant
              mav nlead 'auiltv.'       'not auiltv.'     or    'nolo
              contendere.'     If the    defendant    DleadS      'not
              auiltv' to the offense, a comolaint           shall be
              filed that conforms       to the reouirements         of
              Article   45.01, Code     of Criminal      Procedure,
              1965,   and    that   complaint     serves     as     an
              original complaint.       A defendant      may    waive
              the filing of      a sworn    complaint    and    elect
              that the prosecution      proceed on the       written
              notice    of   the    charged     offense     if     the
              defendant    agrees      in writing        with      the
              prosecution,    signs the agreement,       and    files
              it with the court.

C
          Articles   44.17      and 44.18  of  the Code   of  Criminal
    Procedure   govern the      conduct of a trial de novo in   county




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court upon appeal       of   a judgment from  a justice     court      or
municipal court.        Article 44.17 provides:

              In all  appeals to    a county    court   from
          justice courts    and municipal     courts   other
          than municipal   courts   of record, 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.    An
          appeal to the county court from a municipal
          court of record may be based only on        errors
          reflected  in the record.

Article     44.18   provides:

              In appeals from     justice and     corporation
          courts, all the original papers in the case,
          together with the appeal       bond, if any,      and
          together,   with a certified    transcript    of all
          the proceedings    had in the case before       such
          court shall     be delivered    without delay      to
          the clerk of the     court to which the       appeal
          was taken,    who   shall    file   the   same    and
          docket the case.

These provisions   have been interpreted     to mean that it      is
not necessary  for the    prosecution   to file an     information
in county court when a judgment      is appealed   from a justice
court or municipal   court    "because the original      complaint
in the justice court     serves as the functional       equivalent
of an information   in the county court."      Blevins v. State,
672 S.W.2d 828, 829 (Tex.      APP.  - Corpus  Christi 1984,      no
pet.).

      You ask whether the rule of Blevins applies in a case
in which a person pleaded     guilty or nolo contendere     to   a
traffic complaint    in the  lower court, appealed the      lower
court judgment,    and then pleaded not guilty in the     county
court.   You ask whether a ticket, which would have been         a
proper   complaint    in the    lower  court  because    of    the
defendant's   plea of guilty or nolo contendere,    could serve
as the complaint    in the  county court after the    defendant
pleaded not guilty.

      The Texas   Supreme Court    in  Southern   Canal           Co.   v.
State Board    of Water   Enaineers,  318   S.W.2d 619            (1958),
reviewed the scope     of a trial de novo     in county            court.
The court stated as follows:




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            In IOne Star Ga        Co. v. State      137   Tex.
        279, 153 S.W.2d 68;         692, we said:        'Power
        to try a case de        Aovo vests     a court     with
        full   Dower    to   determine     the    issues     and
        riahts of all narties        involved.     nd to     trv
        the case    as   if the suit       had    Eeen    filed
        oriainallv    in that court.'      The sine gua non
        of a de novo trial       as that term is used         to
        describe a retrial       of a matter or        contro-
        y~~gy theretofore      tried by another       tribunal
        is the    nullification      of   the   judgment      or
        order. of the first tribunal and a retrial of
        the issues on      which the     iudoment or      order
        was   founded.      When    jurisdiction      of     the
        second tribunal      attaches,    the   judgment      or
        order of the     first tribunal       is not     merely
        suspended,   but    is nullified.       Examples      of
        that type of trial are found in our statutes
        applicable   to    appeals    from    Justice     Court
        judgments   and from awards made by the Indus-
        trial Accident     Board.

            Section 16    of   article 5 of       our   state
        constitution    provides:    'In all appeals from
        Justices   Courts there     shall be     a trial    de
        novo in the     County Court . . .# In         inter-
        preting and     applying that     provision    it   is
        held that the perfection       of an appeal from a
        judgment of     a Justice Court       to   a   County
        Court glrnuls the      Justice    Court    judgment.
        (Last emphasis     in original;   others added.)

318 S.W.Zd    at 622.

      The Alabama Supreme Court in Vinvard v. Reoublic          Iron
and Steel Co., 87 So. 552 (1921), had before it the            issue
of whether a new or amended complaint        could be filed in      a
trial de novo.      In Vinvard, the court stated that a new or
amended complaint      may be    filed,   "provided   it does     note
exhibit    an   entire     change   of   parties    plaintiff      or
defendant,    and does not show     a departure   from, or    change
in, the original     form of action."     87 So. at 555.

      Vinvard appears   to be   consistent  with   language    in
Southern Canal that in    a trial de novo     there shall be    a
retrial of the    issues on which    the iudoment was    founded
and the case shall be tried     as if it had been    oriainallv
filed in that court.




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      You suggest that a defendant      cannot object to the use
of the    duplicate  copy    of the  notice of     violation   as   a
complaint   for the first time in the trial de novo.           Since        -
the trial    de novo    vests   the court    with full    aower    to
determine   the issues and riahts of all narties        involved as
if the suit had     been oriainallv   filed     in that court,     it
follows that     a defendant   may  raise a question     about    the
pleading   for the first time in the de novo trial.

      Therefore,    we    think that    the language     of   articles
44.17 and     44.18 must     yield to     the language    of   article
27.14.    Section     (d)   of   article 27.14     provides    that     a
complaint   shall    be filed     upon the    defendant   entering      a
plea of "not guilty."        Where the conviction      has been based
on the notice of violation         (serving as a complaint      in   the
inferior court) and upon trial de novo in the county court
the defendant    enters a plea       of "not guilty,"    a complaint
should be     filed.    The    offense charged     in the    complaint
must be the one alleged         in the inferior court upon         which
the defendant    was    convicted.     If the   plea in the      county
court de novo trial is         lVguilty" or %olo    contendere"      the
duplicate   copy of the notice upon which the conviction             was
based in the inferior court may serve as the complaint.
                                                                            ?
                             SUMMARY

            Where a conviction         in an inferior      court
        is based      on a plea      of "guilty"      or    Wolo
        contendere"     in a    case where     the notice      of
        violation     serves as the charging         instrument
        pursuant    to    section   (d)   of article      27.14,
        Code    of    Criminal     Procedure,     a   complaint
        should be filed        in a trial     de novo in      the
        county court       upon a plea of        "not    guilty"
        being     entered      by   the    defendant.         The
        complaint    must    allege the      same offense      as
        the one charged in the inferior court.                 If
        the plea      in the    de   novo trial     in    county
        court is "guilty" or "nolo contendere,"               the
        duplicate     copy   of the     notice of     violation
        upon which the conviction          was based in       the
        inferior court may serve as the complaint.




                                          JIM      MATTOX
                                          Attorney  General     of Texas
                                                                            ,--.




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P



    MARYKELLER
    First Assistant     Attorney    General

    LOU MCCREARY
    Executive  Assistant       Attorney        General

    JUDGE ZOLLIE STEAKLEY
    Special Assistant  Attorney           General

    RICK GILPIN
    Chairman,  Opinion     Committee

    Prepared by Tom G.      Davis
    Assistant Attorney      General




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