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