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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