Kutner v. Russell, 2

• Decision Date: 06 July 1983
• Docket Number: R,No. 69136,No. 2,2,69136
• Citation: 658 S.W.2d 585
• Parties: William A. KUTNER, Petitioner, v. Steve RUSSELL, Judge, County Court at Lawespondent.
• Court: Texas Court of Criminal Appeals

Page 585

658 S.W.2d 585

William A. KUTNER, Petitioner, v. Steve RUSSELL, Judge, County Court at Law No. 2, Respondent.

No. 69136.

Court of Criminal Appeals of Texas,

En Banc.

July 6, 1983.

Rehearing Denied Oct. 19, 1983.

J.P. Darrouzet, Austin, for petitioner.

Margaret Moore, County Atty. and Claire Dawson-Brown, Asst. Dist. Atty., Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for respondent.

Before the court en banc.

OPINION

CLINTON, Judge.

In a municipal court in Austin petitioner was convicted of a traffic violation. On appeal to the county court at law he invoked the following provisions of Tex.Rev.Civ.Stat.Ann. art. 6701d, § 143A "Dismissal of certain misdemeanor charges upon

completing driving safety course

Sec. 143A. (a) When a person is charged with a misdemeanor offense under this Act, other than a violation of Section 50 or 51, committed while operating a motor vehicle, the court:

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(2) shall defer proceedings and allow the person 90 days to present written evidence that, subsequent to the alleged act, the person has successfully completed a driving safety course approved by the court, if:

(A) the person presents to the court an oral request or written motion to take a course;

(B) the person has a valid Texas driver's license or permit; and

(C) the person's driving record as maintained by the Texas Department of Public Safety does not indicate successful completion of a driving safety course under this subdivision within the two years immediately preceding the date of the alleged offense.

(b) When the person complies with the provisions of Subsection (a) of this section and the evidence presented is accepted by the court, the court shall dismiss the charge." ¹

The court filed a written order denying petitioner's motion and included its findings and reasoning as follows:

"The Defendant, giving competent and acceptable proof, has proven to this Court, in a written statement under oath, that:

1) He has a valid Texas driver's license; and

2) His driving record as maintained by the Texas Department of Public Safety does not indicate successful completion of a defensive driving course under Art. 6701d, Section 143A(a)(2) TCS as amended, within the two years immediately preceding September 6, 1982, which is the date he is allged [sic] to have committed the offense involved in this suit.

It is, however, the opinion of this Court that since this Court is not 'the Court' that the defendant was charged in, then this Court has no statutory power to grant defensive driving under Art. 6701d, Section 143A(a)(2) TCS as amended.

It is further the opinion of this Court that it may not 'defer proceedings' when proceedings have already begun, and that proceedings begin in a Class C misdemeanor when the defendant pleads to the complaint in the court of original jurisdiction. To hold otherwise is to hold that a defendant may try his case, lose, and still have it dismissed if a motion for new trial is granted or an appeal is taken from a justice court or a municipal court not of record. If the Legislature had intended such a manifestly wasteful result, it surely would have said so."

The caption describes the statute as "[a]n Act relating to a driving safety course as an alternative to prosecution for certain traffic offenses...." Acts 1979, 66th Leg., ch. 610 at 1359. When a person stands "charged" with an offense he may, under circumstances prescribed by the Act, choose between going to trial or taking a driving course. After foregoing the "alternative to prosecution," choosing to go to trial, and after having been convicted, he may not invoke the statute on appeal to the county court at law. Accord, Op.Tex.Att'y.Gen. No. MW-428 (1982).

Petitioner vehemently argues that the Act permits him to invoke its provisions and obtain a dismissal at any stage of proceedings, even in this Court. However, we agree with the county court at law in so far as it said, "If the Legislature had intended such a manifestly wasteful result, it surely would have said so."

The application for writ of mandamus is denied.

OPINION DENYING PETITIONER'S MOTION FOR LEAVE TO FILE A

MOTION FOR REHEARING

PER CURIAM.

The unanimous opinion of this Court on original submission denied an application for mandamus to compel the respondent Judge of a County Court at Law to defer proceedings and allow petitioner to take and successfully complete an approved driving safety course, to the end that the traffic violation of which he had been charged and convicted in an Austin municipal court would be dismissed. It was on appeal to the county court at law that petitioner had first invoked the provisions of Article 6701d, § 143A(a)(2), V.A.C.S., as the opinion of the Court undertook to make clear by also eliding § 143A(a)(1 ), ¹ and by excerpting the written order of respondent that, in turn, alluded only to § 143A(a)(2). ² In essence we held that it was too late for such an accused to demand that proceedings be deferred under the mandatory provisions of § 143A(a)(2), having earlier opted in the municipal court to go to trial on the accusation rather than to move to defer proceedings to take a driving course and having been convicted of the traffic violation, and then appealing to county court at law for a trial de novo.

Nothing in petitioner's motion for rehearing persuades us that the initial opinion of the Court was in error in any respect. ³ In rejecting his motion for leave to file we write only to underscore that which was decided and to point out that our decision does not at all implicate § 143A(a)(1)--the discretionary deferral of proceedings.

The motion for leave to file a motion for rehearing is denied.

TEAGUE, Judge, concurring.

The facts in this cause reflect that William A. Kutner, Petitioner, was charged, tried, and convicted in the Municipal Court of the City of Austin. Thereafter, he appealed the conviction to the County Court at Law Number Two of Travis County, as was his lawful right. Such appeal will result in a trial de novo. See Art. 44.17, V.A.C.C.P. Cf. Ex parte Spring, 586 S.W.2d 482 (Tex.Cr.App.1979).

Petitioner asserts that, as part of the appeal, Judge Steve Russell, the elected judge of the County Court at Law No. Two of Travis County, was required to permit him to take the defensive driving course provided by Art. 6701d, Sec. 143A, V.A.C.S. Judge Russell declined to permit appellant to invoke the provisions of that statute on the ground that the Act could be invoked only in the charging or Municipal Court of Austin. On original submission, this Court unanimously agreed with Judge Russell, holding the following:

When a person stands 'charged' with an offense he may, under circumstances prescribed by the Act, choose between going to trial or taking a driving course. After foregoing the 'alternative to prosecution,' choosing to go to trial, and after having been convicted, he may not invoke the statute on appeal to the county court at law.

On original submission, I agreed with what this Court stated in denying appellant any relief. I now find I agree for a different reason: The county court never had jurisdiction over the ancillary matter concerning the defensive driving course.

Until recent times, Art. V, Sec. 16, Texas Constitution, and Art. 44.17, supra, controlled the appeal of a conviction occurring in a justice or municipal court. Previously, any person convicted in a justice or municipal court of this State had the lawful right to a trial de novo in an appeal to the county court. That, however, is no longer true. For example, effective June 19, 1983, the 68th Legislature has authorized the Municipal Court of Austin to become a court of record, thus precluding a trial de novo in the county court from a conviction that has occurred in the Municipal Court of Austin. However, at the time appellant was accused of committing the traffic offense, an appeal from the Municipal Court to a county court at law of Travis County was to be conducted by de novo proceedings.

Even before the change in the law applicable to the Municipal Court of Austin, in a trial de novo in the appeal from a conviction suffered in the municipal court, the law only required that there be a new determination of guilt, not that the entire prosecution be commenced anew, or that any ancillary benefits which the defendant might have received in the original court must be granted him in the trial de novo proceedings.

A trial de novo in the county court simply means that a person shall receive a new trial on the merits of the accusation, and does not encompass such ancillary matters as contained within Art. 6701d, Sec. 143A, supra. Thus, the county court never had jurisdiction over the subject matter of a defensive driving course. Judge Russell correctly denied appellant permission to invoke the provisions of the statute. See and compare Kirksey v. State, 58 Tex.Cr.R. 188, 125 S.W. 15 (1910).

For the above reasons, I concur to the overruling of appellant's motion for leave to file his motion for rehearing.

ONION, Presiding Judge, dissenting.

Petitioner seeks a writ of mandamus to compel the respondent, Judge of County Court at Law No. 2 of Travis County, to defer proceedings concerning a speeding complaint pending trial de novo in said court in accordance with Article 6701d, § 143A(a)(2), V.A.C.S. ¹ It appears that petitioner was convicted in the Municipal Court of the City of Austin on October 7, 1982, of the offense of speeding under state statutes, without attempting to invoke the provisions of said § 143A(a)(2). Notice of appeal was given. Prior to a trial de novo in the said county court, petitioner sought to invoke the mandatory provisions of said § 143A(a)(2). The respondent judge in an order found petitioner had filed a written motion to take a driving safety course, had a valid Texas driver's license, and that petitioner's driving record maintained by Department of Public Safety...