*1 rehearing correctly out the York points following: “The New v. [People Kirkpatrick, N.Y.2d (New York N.Y.S.2d N.E.2d
1973), appeal dismissed for want of a sub- nom.,
stantial sub question Kirkpatrick York,
New 94 S.Ct. U.S. (1974)
L.Ed.2d held that the conviction ] regardless that cause would stand of the because there
validity presumption enough satisfy require- evidence to resorting
ment of scienter without to the of New York Penal
statutory presumption
Law, Thus, 235.10. the alternative rea- Sec. affirming
soning of the New York court failed to Su- resolve,
preme Court a thus controversy
no substantial question.”
Thus, the New York when con- issue, Court,
fronted with the unlike
was able to use an alternative method of Court,
disposing of its case. This in its did from Jus- opinion, quote Chief
tice dissenting opinion, Fuld’s but did so
only in the context of the First Amendment
issue that confronted this Court. rehearing State’s for is cor-
rectly overruled. Austin, Darrouzet, petitioner. for
J.P. Moore, Atty. and Claire Margaret KUTNER, Petitioner, William A. Robert Dawson-Brown, Atty., Asst. Dist. Walker, Huttash, Alfred Atty. and State’s Austin, respondent. Atty., Asst. State’s RUSSELL, Judge, County Steve 2, Respondent. Law No. 69136.
No. Texas, Appeals of Criminal OPINION En Banc. CLINTON, Judge. July court in Austin In a 19, 1983. Rehearing Denied Oct. On a traffic violation. was convicted of law he in- court at appeal to of Tex.Rev. following provisions voked the 6701d, 143A: art. Civ.Stat.Ann. *2 charges “Dismissal of certain misdemeanor he is to allged date have committed [sic] driving course upon completing safety offense involved in this suit. the is, however, opinion It of this Court (a) 143A. When is person Sec. a charged with a misdemeanor offense un- since this Court is not ‘the Court’ Act, der this other than a violation in, charged then defendant operat- 50 or committed while Section power to statutory this Court has no vehicle, ing a motor the court: 6701d, driving grant defensive under Art. [*] [*] [*] [*] [*] [*] Section 143A(a)(2) TCS as amended. opinion It is of this Court (2) shall defer allow further proceedings and person days written may proceedings’ that it not ‘defer when that, subsequent evidence the alleged and that already begun, have act, the has person completed successfully in a misde- C proceedings begin Class driving approved a course safety by meanor the defendant pleads when court, if: jurisdic- complaint in the court person an
(A) presents to the court that a To otherwise to hold tion. hold is a request oral or written motion to take lose, case, and still defendant his may try course; a for new trial have it dismissed if motion (B) person a has valid Texas driv- from a or an is taken granted is and permit; er’s license or not of justice court or intended (C) person’s driving Legislature record as If had record. result, Texas by Department maintained it sure- manifestly wasteful such Safety Public does not indicate successful would said so.” ly have driving course un- completion safety the statute as caption describes “[a]n years der this within the two subdivision an relating Act immediately date preceding certain traffic prosecution alternative alleged offense. ” Leg., ch. .. Acts offenses.. (b) When person complies stands a person at 1359. When (a) of this section Subsection under may, offense he “charged” with an by presented accepted and the evidence Act, choose by the prescribed circumstances shall the court dismiss taking trial or going to between charge.”1 the “alternative to foregoing After course. denying The court filed a written order trial, choosing to prosecution,” findings and included its petitioner’s motion having after been reasoning follows: the statute invoke Defendant, giving competent “The Accord, Op.Tex.Att’y.Gen. at law. proven to this acceptable proof, No. MW-428 oath, Court, in a written statement under vehemently argues Petitioner that: to invoke its permits Act him 1) valid Texas driver’s He has a proceed- any stage a dismissal obtain license; and However, we even in this Court. ings, 2) His record maintained in so far court at law with the agree Safety the Texas Public Department intended said, Legislature as it “If completion successful indicate result, surely it wasteful manifestly such course under Art. defensive have said so.” would 6701d, 148A(a)(2) as amend- TCS Section writ of mandamus application for immediately pre- ed, years within two is the denied. September which ceding emphasis supplied throughout cated. All opinion indi- unless otherwise writer
OPINION DENYING PETITIONER’S The motion for leave file a motion for MOTION FOR LEAVE FILE A TO rehearing is denied.
MOTION FOR REHEARING
PER CURIAM. TEAGUE, Judge, concurring. The unanimous opinion of this Court on The facts in this cause reflect that Wil- *3 original submission application denied an Kutner, liam Petitioner, A. was charged, for mandamus to compel respondent tried, and convicted in the Municipal Court Judge of a to County Court at Law defer Thereafter, he City ap- Austin. proceedings and allow to take petitioner pealed the conviction to the County and an driv successfully complete approved at Law Number Two of Travis County, course, traffic ing safety to the end that the was his lawful right. appeal Such will re- violation of which charged he had been and in a sult trial de novo. See Art. convicted in an Austin V.A.C.C.P. Cf. Ex parte Spring, S.W.2d would appeal be dismissed. It was on to 482 (Tex.Cr.App.1979). the county court at law that that, part Petitioner asserts of the first invoked of Article appeal, Russell, Judge Steve the elected 6701d, 143A(a)(2), V.A.C.S., opinion as the § judge of the Court at Law No. Two of the Court undertook to make clear by County, required permit of Travis to eliding 143A(a)(l ),1 also and by excerpt him driving to take the defensive ing that, the written of respondent order 6701d, provided by 143A, Art. Sec. Y.A.C.S. turn, only 143A(a)(2).2 alluded to In es Russell Judge permit appellant declined to sence we held that it was too late for such to invoke the of that statute on an accused to demand that proceedings be ground the Act be invoked could deferred under mandatory provisions of charging in the or Municipal Court 148A(a)(2), having earlier opted submission, original Austin. On this Court municipal court to to trial go on the accusa Russell, unanimously agreed Judge with tion rather than to proceed move to defer holding following: ings to take driving having course and ‘charged’ When a stands with an person been violation, convicted of the traffic may, pre- offense he under circumstances then appealing county court at law for a Act, scribed choose between going trial de novo. taking driving to trial or course. After Nothing petitioner’s motion for rehear- foregoing prosecution,’ the ‘alternative to ing persuades us that the initial opinion trial, after choosing having the Court was in error in any respect.3 In may been not invoke the rejecting his motion for leave to file we statute on court at write only to underscore that which was law. decided and to point out that our decision submission, not at all implicate 143A(a)(l) agreed I original On —the discretionary deferral of proceedings. denying appellant what this stated in noted, 143A(a)(l) Still, provides pertinent part opinion 1. Section our did it must be person charged respondent. approve finding that when a with a misde- Act, excep- meanor offense under the with two clarify tions, amicus curiae would have us 3.An the court: rehearing guide the bench and bar” “to better “(a) proceed- in its discretion defer right an accused to reliti- the matter of the ings person days and allow the gate appellate de novo before an court denial person successfully evidence that ... request written court below of an oral or course...;” completed a defensive driver’s proceedings to take a motion to defer defensive (All emphasis throughout by is added the writ- course, by being put followed to trial indicated.) opinion er of unless otherwise objection. Since the instant cause is not over procedural posture, in that we decline the invi- statutory power court has no “[T]his squarely until 670Id, tation and reserve the issue defensive under Art. Section presented. 143A(a)(2), as amended.” agree I I any anew, relief. now find differ- prosecution be commenced or that any ancillary ent reason: The court never had benefits which the defendant might jurisdiction over the matter con- have received ancillary him the trial de novo granted must be the defensive course. cerning proceedings. times, V, Art. Until recent Texas Sec. simply A de
Constitution, 44.17, supra, Art. con- that a shall receive a new person means occurring trolled the accusation, trial on merits in a justice municipal Previously, court. ancillary does not such matters encompass any justice convicted in a or munici- person 6701d, 143A, Art. within Sec. contained pal right court of this had the lawful State Thus, supra. county court never had trial de novo in an jurisdiction subject matter over the That, however, is longer court. no true. Judge defensive course. Russell example, For effective June *4 in- correctly appellant permission denied to 68th the Legislature has authorized Munici- the See and provisions voke the of statute. pal of to a court of Court Austin become 188, Tex.Cr.R. Kirksey v. compare record, precluding thus a trial de novo in S.W. county the court from a conviction that has in the of Municipal occurred Austin. reasons, to the above I concur the For However, appellant at the was accused time for leave to appellant’s of motion overruling offense, committing appeal of the traffic an rehearing. file his motion for from the Court to a court Municipal ONION, dissenting. County Judge, at law of Travis was to be conduct- Presiding by proceedings. ed de novo writ mandamus to seeks a of Petitioner of respondent, Judge
Even law the change appli- compel before the in the Austin, cable to the Court of in a 2 of to Municipal County, at Law No. Travis speeding a a concerning de novo in the from convic- proceedings defer court, tion suffered in the the trial de novo said complaint pending 6701d, with Article law that a in accordance only required there be new de- 143A(a)(2), of the V.A.C.S.1 guilt, termination that entire § 670Id, 143A, V.A.C.C.P., safety driving at under this 1. Article effect course § tion petitioner’s immediately years under two the time sion two subdivi- subdivision within the thereof, alleged reads as follows: preceding offense. the date of the (a) person “(b) person complies with “Sec. 143A. When When the the charged (a) with a misdemeanor offense under of this section Subsection Act, accepted by presented other than violation of Section and the evidence 51, operating a or committed while motor court, charge. shall dismiss vehicle, the court: charge is dismissed under this “When “(1) may proceed- in its defer discretion section, may part charge person days present ings and allow the to any pur- driving person’s or for record used act, that, alleged subsequent evidence to the report the fact that a pose, the court shall but completed person successfully a de- has successfully completed driving person by approved the Tex- fensive driver’s course completion safety course and date of Safety Department Public other driv- or Safety Department of Public the Texas court; safety approved by ing or course person’s driving The record. inclusion “(2) proceedings shall and allow defer report in its whether court shall note person days present evidence written procedure pro- was taken under the course act, that, subsequent alleged per- to the (2) (a) by of Subsection vided Subdivision successfully completed son has purpose providing in- this section for the by safety approved course if: eligibility necessary to determine formation “(A) person presents to the court an subsequent under that subdi- take a request to take a or written motion oral course; (Acts Leg., p. ch. vision.” 1979). eff. June § “(B) person has a Texas driver’s valid 143A(a)(2) has now now observed that § It is permit; license part: read been amended to “(C) person’s driving as main- record “(2) shall and allow Department defer tained Public the Texas days comple- person written evidence Safety does not indicate successful appears It was convicted On original submission this court denied in the Municipal Court of the of Austin City relief, the petitioner stating: 7,1982, on October of the offense of speed- person “When a stands ‘charged’ ing statutes, under state attempt- without an offense he under may, circumstances ing to invoke the said prescribed Act, choose between 143A(a)(2). given. Notice of going taking to trial or course. Prior to a trial de the said After foregoing prose- the ‘alternative to court, petitioner sought to invoke the man- cution,’ trial, choosing and after datory provisions 143A(a)(2). of said having been not invoke respondent judge in peti- an order found the statute on tioner had filed a written motion to take a Accord, Op.Tex.Att’y.Gen. law. No. course, had a valid Texas (1982).” MW-428 license, driver’s petitioner’s and that In his motion for leave to file a motion record by Department maintained of Public alia, for rehearing petitioner argues, inter did not indicate a Safety successful comple- give this court did not due considera- tion of a driving safety course under subdi- tion to the trial de novo aspect pro- vision (a)(2) of 143A within years two ceedings court at law. preceeding alleged date of the speeding motion, writing said offense, but denied petitioner’s motion on same, granting without attempts ground the said county court did the earlier clarify holding by restating it in jurisdiction not have as it was not “the different language.2 The how- majority, Court” referred to in 143A(a)(2), and that *5 ever, does not come to grips with the trial it could not “defer proceedings” pro- when de aspect question novo of the and further ceedings in the Class C misdemeanor had reveals that study Attorney cited Gen- already commenced in the original court of Opinion eral’s No. MW—428 sup- does not jurisdiction, court, the municipal and the port the broad statement made on plead had to the complaint there. submission.3 It is for this reason that I Petitioner contends that he complied had write. with the provisions 143A(a)(2), V, 16, Constitution, Article pro- Texas that under these circumstances the statute vides in part: is in mandatory court at county law on a “... In all appeals from Justices trial de novo and judge only Courts there shall be a trial de novo in ministerial duty of deferring proceedings ” Court, (Emphasis sup- .... for 90 days to permit the completion plied.) driving safety course. This is the object of his 44.17, Y.A.C.C.P., mandamus action. Article provides: that, subsequent act, alleged per- proceedings tion rather than to move to defer successfully completed son has having a defensive to take a course and been approved by violation, driver’s course the Texas De- convicted of the traffic then partment Safety county appealing of Public or another court at law for a trial de safety approved court, by the if: novo.” (The portion being Implicit holding majority italicized or underlined is the amendment.) (Acts 1983, 4497, Leg., p. if does file his motion to fact that a defendant 728, 1, 1983.) ch. driving safety 143A(a) eff. December take a course under in only The amendment is not here original jurisdiction involved and the court of and it is denied adds to the law a defensive and he is refile or renew the approved by Department of Public county motion in the court on the trial de novo. Safety. majority saying you Thus the can ask for the course on the trial de novo 2. The now states: you justice if have earlier asked for it in the “In municipal essence we held that it was too late for court. such an accused to demand that Atty.Gen.Op. eight mandatory No. MW-428 answers be deferred under the specific questions, 143A(a)(2), having opted none of which deal with a of Sec. earlier county municipal trial de novo in court. court to to trial on the accusa- justice corpo-
“In all
from
is in
appeals
statutory
effect
court,
a new trial
to be had
county
ration courts to the
the trial
the accused
designated
before the
court.
appellate
be de
in
in
county
shall
the trial
Commonwealth,
Baylor v.
190 Va.
court, the
as if
prosecution
same
ap
of an
perfection
5.E.2d 77
in
court.”
originally
been
commenced
peal
deprives
from a
court
(Emphasis supplied.)
finality.
judgment of conviction of its
See
45.10, V.A.C.C.P., provides:
Article
(Tex.
State,
and cf. Deal v.
423 S.W.2d
shall
“Appeals
corporation
from
court
Cr.App.1968).
except
heard
court
county
be
Watts,
In
McIntosh
S.W.2d
juris-
cases
no
county
where
court has
1928), the
(Tex.Civ.App.
— Waco
diction,
appeals
in which counties such
wrote:
In
proper
shall be heard
court.
appealing
effect of
necessary
“The
novo.
appeals
such
the trial shall
de
corporation
from a conviction in a
appeals
governed by
shall be
Said
ren-
judgment
to vacate the
practice
ap-
rules of
for
procedure
therein and
against
dered
the defendant
from
peals
justice courts
against him
trial
charge
transfer
court,
applicable.”
(Emphasis
as far as
though originally
supplied.)
filed therein.”5
1194A, Y.A.C.S., provides:
Article
In
S.W.2d
Tidwell
‘Corporation
“The name
Court’
this court wrote:
(Tex.Cr.App.1977),
All
changed
‘Municipal
Court.’
V,
Article
“Under
Corpo-
statutory references
other
Constitution, and
16 of the Texas
Section
mean
Court shall be construed to
ration
Ann.C.C.P.,
44.17,
there
Article
Vernon’s
1969, 61st
(Acts
the Municipal Court.”
shall be a
de novo
1, eff.
p.
September
ch.
Leg.,
court, the same as
justice
all
from
appeals
1, 1969).
originally
if
had been
the prosecution
Y.A.C.
also amendment
Article
See
court.
commenced
*6
3839-3840,
1983,
pp.
(Acts
Leg.,
C.P.
Jones,
380,
128 Tex.Cr.R.
parte
“In Ex
1, 1983).
ch.
September
eff.
§
81
706
(Tex.Cr.App.1935),
S.W.2d
Dictionary
English
of
Random House
novo in the
in a trial de
court held
1967)
Language (Unabridged
defines
court,
evidence must be
‘the
county
Ed.—
“anew;
Latin)
(from
“de novo”
as
heard,
judgment
and the
and the verdict
afresh; again;
beginning.”4
from the
in
with law
rendered in accordance
court,
regard to
evi-
superior
without
Fourth
Dictionary,
Black’s Law
Revised
dence,
or manner of conduct
plea6
as “a
(1968),
Edition
“trial de novo”
defines
(Emphasis
trial
court.”
took
lower
in an appellate
new trial or retrial had
supplied.)
is
into
gone
court in which the whole case
previous plea
is
that the
in
It
further noted
had
as if no
whatsoever had been
trial
previous
entered
supplied.)
judgment
or
(Emphasis
guilty
the court below.”
not admis-
C.J.S., Crim.Law,
justice municipal
in
or
are
22
generally
See also
sible,
novo in
objection in
trial de
over
403(1), p. 1085.
§
Respondent
Judge,
Dictionary,
It is
6.
observed
4. Webster’s New International
(Unabridged),
denying petitioner’s
“de
also
motion under
defines
his order
Second Ed.
“anew;
juris-
143A(a)(2)
Accord: Merriam—
novo” as
afresh.”
noted his court was without
Dictionary (1974).
petitioner
Webster
had
defer
diction to
complaint municipal
plead
court. The
to the
prior
be
to a
An information need not
filed
5.
light
respondent
the trial de
was in error in
parte Mo
Ex
de novo in
court.
trial
rales,
novo.
(Tex.Cr.App. 1898); Kneedler
591
court. Martoni v.
Tex.
74
mus relief.
It has been held that manda
(1914);
Cr.R.
v.
S.W.
Tidwell
(1)
mus in a criminal case is not available
State, supra.
compel
discretionary
distinguished
act
act,
(2)
from a ministerial
and will not lie if
Lucia,
(Tex.
And in Butts v.
An 143A(a)(2) examination of Arti- 6701d, V.A.C.S., cle reveals no expressed dispute is no the petitioner’s There that the legislative requirement motion for complied requirements motion with the presented course be 143A(a)(2) that the statute is manda- jurisdiction. of original pre- It is tory. Only ministerial act was involved sumed Legislature was aware of the on respondent However, Judge’s part. de novo of the Constitution the petitioner adequate have an reme- and the the Legislature statutes. If dy respondent persists at law if the in his intended the presentation prohibit refusal said motion? If the such a motion on trial de novo in petitioner does, it a direct following conviction in Appeals, this can come court it expressly provided. could have It only after a trial and did do so.8 Court, and this Petitioner was entitled to a trial de pursued all if the fine in County assessed in County Court at Law “the same as if Court for the offense of speeding $100.00 prosecution had been originally commenced 4.03, Y.A.C.C.P., Article less. See in that court.” Article His supra. amended. right file a motion under 143A(a)(2) on Tex.Jur.2d, In 37 B. Mandamus [Exist- trial de novo was not delimited fail- by his Remedy], pp. ence of Other §§ ure to file such Municipal 599-606, it written in part: Court Austin. We were in con- error in cluding submission, otherwise In general “Sec. and the majority is still con- wrong not to does not lie where the rela- “Mandamus
sider the requirements of a novo. trial de another plain, tor has effective and ade- sought
One to obtain relief question it, quate remedy as I remains see and that is whether petitioner is entitled does not example, to manda- ... For mandamus *7 noted, As earlier trial de novo like trial have stood case the new had been granting 40.08, granted of a new trial. Article V.A.C. the court below.” C.P., provides: State, Tex.App. (1880), In v. it Beardall judgment was that the effect of held place “The effect new trial is to merely not aside the imme- reversal was set position cause in the same it was which below from diate the court any place. before trial had taken The former taken, appeal place but which the was was to regarded presump- conviction shall be as no position the entire cause in which same guilt, tion of nor shall it be in the alluded to any it there of it. See was before trial also argument.” State, Tex.App. (1879); Hughes State, Cox v. v. (Tex.Cr. In Reed S.W.2d 680 (1913). S.W. 912 68 Tex.Cr.R. App.1974), it was that when held the trial granted the motion for new trial re case 32A.02, (Article Speedy Trial Act 8. The V.A.C. position mained on the as docket same C.P.) expressly a trial de mention place. before the initial took attorney has that a trial de novo. The held It is also observed that Article V.A.C. following conviction in novo in C.P., provides: justice subject municipal or appeals “Where the court of Court Speedy Op.Atty.Gen. Act. No. H-1130 Trial Appeals Criminal awards a to a new trial defendant, shall stand as if would cause it relator has an effective and
lie where the adequate remedy by appeal GARRETT, Appellant, Curtis Adequacy “Sec. 13. existing remedy, prevent “Another Texas, Appellee. The STATE of mandamus, plain, be accu- resort to must rate, certain, adequate for speedy, 872-82, Nos. 873-82. remedy The other relief of the relator. Texas, Appeals of Criminal adequate general must be only En Banc. term, be specific must sense of the but circum- particular appropriate 20, 1983. July case; is, remedy that stances tff very subject must relief on the afford give the controversy and
matter of the law particular right
relator the Moreover, equal- it must be
affords him. convenient, beneficial, and effective
ly as mandamus, remedy by prevented the writ will not be
issuance of inaccurate or
by the existence of other
tedious modes of redress.” Mandamus, Tex.Jur.2d, 14, pp. also
See
606-610. having complied with petitioner respondent was 143A(a)(2), required a ministerial act. refusal, remedy other than
Upon appeal
mandamus is direct
Appeals. petitioner This means would Court at complete
have trial in
Law on the Class C misdemeanor traffic likely
offense most speeding, counsel, to himself expense
assistance of at state,
and to and then if the fine Appeals
Court of after conviction get in order to
imposed is more than $100.00 presented. of the question resolution all if the fine
There be no would 4.03. It
imposed is or less. Section $100.00 has an ade-
cannot said the
quate right remedy by convenient,
certain, speedy, and is remedy as the
beneficial and effective
mandamus. *8 is entitled to issuance mandamus. I dissent to writ of relief
refusal of
requested. III, Bratton, A. Wright, William MILLER, JJ., join this Frank S.
W.C. DAVIS Dallas, appellant. opinion.