Untitled Texas Attorney General Opinion

The Attorney General of Texas February 8, 1982 MARK WHITE Attorney General Supreme Court Bullding Honorable Mike Driscoll opinion No. Mw-441 P. 0. Box 1254S Harris County Attorney Austin. TX. 78711 1001 Preston, Suite 634 Re: Authority of justice court 512/475-2501 Houston, Texas 77002 to dismiss citations which Telex 8101874.1367 contain fatal errors Telecopier 5121475-0266 Dear Mr. Driscoll: 1807 Main SI., suite 1400 Dallas, TX. 75201 You have requested our opinion regarding the authority of a 2141742-8944 justice of the peace to dismiss traffic citations which contain fatal errors, such as an impossible date or the failure to set a date for 4824 Alberta Ave.. Suite 160 the defendant to appear. We understand your inquiry to refer to El Paso. TX. 79905 dismissal prior to the filing of the citation. 915!533aw Although article 45.17 of the Code of Criminal Procedure lists 1220 Dallas Ave., Suite 202 the requisites of a proper complaint, including -the date of the Houstan, TX. 77002 offense, neither the Code of Criminal Procedure nor any other 713is500686 statutory provision allows for the dismissal of a traffic citation prior to its filing. Of course, since the Code of Criminal Procedure applies to any case in justice court "in which a fine .may be 808 Broadway. Sulie 312 Lubbock. TX. 79401 assessed," article 4.15 of the Code of Criminal Procedure, the court 8081747.5238 may grant a motion to set aside the complaint by virtue of a defect therein. Code Grim. Proc. art. 28.04. 4309 N. Tenth, Suite B You also ask whether a proceeding under article 6701d. section McAllen. TX. 78501 51218824547 143A. V.T.C.S., kneed be entered on the docket of the justice of the peace court. Section 143A provides: 200 Main Plaza. Suite 400 Sec. 143A. (a) When a person is charged San Antonio, TX. 78205 with a misdemeanor offense under this Act, other 512f225-4191 than a violation of Sections 50, 50A, or 51, committed while operating a motor vehicle, the An Equal Opportunity/ court in its discretion may defer proceedings and Affinnatlve Action Employer allow the person 90 days to present evidence that, subsequent to the alleged act, he has successfully completed a defensive driver's course or other driving safety course approved by the court. 6) When the person complies with the provisions of Subsection (a) of this section and the evidence presented is accepted by the court, p. 1521 - . Honorable Mike Driscoll - Page 2 @W-441). the court shall dismiss the charge against him. When a charge is dismissed under this section, the charge may not be part of the person's driving record or used for any purpose. Article 45.13 of the Code of Criminal Procedure requires each justice of the peace to "keep a docket in which he shall enter the proceedings in each trial had before him." Article 45.13 makes no exception for proceedings under section 143A. It is therefore our opinion that a justice of the peace is required to enter on his criminal docket all proceedings pursuant to article 6701d, section 143A, V.T.C.S. SUMMARY A justice of the peace is not authorized to dismiss traffic citations prior to filing, but may afterward do SO. A justice of the peace is required to enter on his criminal docket all proceedings pursuant to article 6701d. section 143A. V.T.C.S. MARK WHITE Attorney General of Texas JOHN W. FAINTER, JR. First Assistant Attorney General RICHARD .R.GRAY III Executive Assistant Attorney Cenerai Prepared by Rick Gilpin Assistant Attorney General APPROVED: OPINION COMMITTEE Susan L. Garrison, Chairman Jon Bible Rick Gilpin Barbara.Lipscomb Jim Moellinger Bruce Youngblood p. 1522