ALEX WATHEN
ATTORNEY AT LAW

AGGRESSIVE TRAFFIC TICKET DEFENSE - Winning and dismissal is my top priority!

FAILURE TO APPEAR VERSUS VIOLATE PROMISE TO APPEAR

Here is a paper I presented at a seminar on how to beat a failure to appear charge. I also recommend reading the following sources to gain a good understanding of the issue:

Attorney General Opinion, H-963 (1977)

Azeez v. State, 203 S.W.3d 456 (Tex. App. Houston 2006) (pet. granted May 2, 2007, No. PD-0010-07)





Alex Wathen’s


How to Beat an FTA


Presented at the Municipal Justice Bar Association of Texas


Annual Traffic Law Seminar, New Braunfels


August 18, 2007



HOW TO BEAT AN FTA


Code of Criminal Procedure Ticketing – No Failure to Appear Offense


Code of Crim. P. art. 14.06. [217] [264] [252] MUST TAKE OFFENDER BEFORE

MAGISTRATE.

(a) Except as provided by Subsection (b), in each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall take the person arrested or have him taken without unnecessary delay, but not later than 48 hours after the person is arrested, before the magistrate who may have ordered the arrest, before some magistrate of the county where the arrest was made without an order, or, to provide more expeditiously to the person arrested the warnings described by Article 15.17 of this Code, before a magistrate in any other county of this state. The magistrate shall immediately perform the duties described in Article 15.17 of this Code.

(b) A peace officer who is charging a person, including a child, with committing an offense that is a Class C misdemeanor, other than an offense under Section 49.02, Penal Code, may, instead of taking the person before a magistrate, issue a citation to the

person that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged.



Penal Code Failure to Appear


Pen. Code § 38.01. DEFINITIONS. In this chapter:

(1) "Custody" means:

(A) under arrest by a peace officer or under

restraint by a public servant pursuant to an order of a court of

this state or another state of the United States; or

(B) under restraint by an agent or employee of a

facility that is operated by or under contract with the United

States and that confines persons arrested for, charged with, or

convicted of criminal offenses.


Pen. Code § 38.10. BAIL JUMPING AND FAILURE TO APPEAR.

(a) A person lawfully released from custody, with or without bail, on condition

that he subsequently appear commits an offense if he intentionally or knowingly fails to appear in accordance with the terms of his release.

(b) It is a defense to prosecution under this section that the appearance was incident to community supervision, parole, or an intermittent sentence.

(c) It is a defense to prosecution under this section that the actor had a reasonable excuse for his failure to appear in accordance with the terms of his release.

(d) Except as provided in Subsections (e) and (f), an offense under this section is a Class A misdemeanor.

(e) An offense under this section is a Class C misdemeanor if the offense for which the actor's appearance was required is punishable by fine only.

(f) An offense under this section is a felony of the third degree if the offense for which the actor's appearance was required is classified as a felony.


Section 38.10 of the Penal Code applies to persons who are in custody pursuant to a court order. Section 38.10(a), entitled “Bail Jumping and Failure to Appear,” provides: “A person lawfully released from custody, with or without bail, on condition that he subsequently appear commits an offense if he intentionally or knowingly fails to appear in accordance with the terms of his release.” Tex. Penal Code Ann. § 38.10(a) (Vernon 2003). All the elements of section 38.10 are included in the complaint, but the definition of custody in this chapter specifically limits section 38.10 to those situations when a person is under arrest pursuant to a court order of this state or another state or when a person is under restraint by an agent or employee of a facility, such as a jail or prison. See Tex. Penal Code Ann. § 38.01(1) (Vernon 2003).

Azeez v. State, 203 S.W.3d 456, 464-465 (Tex. App. – Houston 2006) (pet. granted May 2, 2007, No. PD-0010-07).

Penal Code 38.10 does not apply if a citation is issued.

If offense is under:

Title 7 (ch 501 - ), Subtitle C (ch. 541- 600) or open container Pen Code 49.031

BUT, Houston City Ordinance 16-47 does apply but only to trial settings.

Not for alcoholic beverage code violations.




Houston City Ordinance


City of Houston, Code of Ordinances § 16-47. Failure of defendant to appear at trial.


It shall be unlawful for any person knowingly to fail to appear for the trial of any charge against the person pending in the municipal courts of the city.



Transportation Code Failure to Appear


Tex. Pen. Code § 792 (1925). Violation of promise to appear


In case of any person arrested for violation of the preceding articles relating to speed of vehicles, unless such person so arrested shall demand that he be taken forthwith before a court of competent jurisdiction for an immediate hearing, the arresting officer shall take the license number, name and make of the car, the name and address of the operator or driver thereof, and notify such operator or driver in writing to appear before a designated court of competent jurisdiction at a time and place to be specified in such written notice at least five days subsequent to the date thereof, and upon the promise in writing of such person to appear at such time and place, such officer shall forthwith release such person from custody. Any person willfully violating such promise, regardless of the disposition of the charge upon which he was originally arrested, shall be fined not less than five nor more than two hundred dollars.


1947 Texas Laws, Ch. 421, § 149 (HB 172). Uniform Act Regulating Traffic on Highways


Article XVII, Section 149.

  1. Any person wilfully violating his written promise to appear in court, given as provided in this Article, is guilty of a misdemeanor regardless of the disposition of the charge upon which he was arrested.

  2. A written promise to appear in court may be complied with by an appearance by counsel.



Tex. Transp. Code § 542.401. General Penalty


A person convicted of an offense that is a misdemeanor under this subtitle for which another penalty is not provided shall be punished by a fine of not less than $ 1 or more than $ 200.


Tex. Transp. Code § 543.001. Arrest Without Warrant Authorized


Any peace officer may arrest without warrant a person found committing a violation of this subtitle.


Tex. Transp. Code § 543.003. Notice to Appear Required: Person Not Taken Before Magistrate


An officer who arrests a person for a violation of this subtitle punishable as a misdemeanor and who does not take the person before a magistrate shall issue a written notice to appear in court showing the time and place the person is to appear, the offense charged, the name and address of the person charged, and, if applicable, the license number of the person's vehicle.


Tex. Transp. Code § 543.004. Notice to Appear Required: Certain Offenses


(a) An officer shall issue a written notice to appear if:

(1) the offense charged is speeding or a violation of the open

container law, Section 49.03, Penal Code; and

(2) the person makes a written promise to appear in court as provided

by Section 543.005.

(b) If the person is a resident of or is operating a vehicle licensed in a state or country other than this state, Subsection (a) applies only as provided by Chapter 703.

(c) The offenses specified by Subsection (a) are the only offenses for which issuance of a written notice to appear is mandatory.


Tex. Transp. Code § 543.009. Compliance With or Violation of Promise to Appear


(a) A person may comply with a written promise to appear in court by an appearance by counsel.

(b) A person who wilfully violates a written promise to appear in court, given as provided by this subchapter, commits a misdemeanor regardless of the disposition of the charge on which the person was arrested.


SEE ALSO: TEX. CODE CRIM. P. art 27.14(a); Op. Att’y Gen. H-963, at 4(1977) (allowing both options mentioned here).


Code of Crim. P. art. 27.16. PLEA OF NOT GUILTY, HOW MADE. (a) (omitted).

(b) A defendant charged with a misdemeanor for which the

maximum possible punishment is by fine only may, in lieu of the

method provided in Subsection (a) of this article, mail to the court

a plea of not guilty.


Code of Crim. P. art. 45.013. FILING WITH CLERK BY MAIL. (a) Notwithstanding any other law, for the purposes of this chapter a document is considered timely filed with the clerk of a court if:

(1) the document is deposited with the United States Postal Service in a first class postage prepaid envelope properly addressed to the clerk on or before the date the document is required to be filed with the clerk; and

(2) the clerk receives the document not later than the 10th day after the date the document is required to be filed with the clerk.

(b) A legible postmark affixed by the United States Postal Service is prima facie evidence of the date the document is deposited with the United States Postal Service.

(c) In this article, "day" does not include Saturday, Sunday, or a legal holiday.


Code of Crim. P. art. 45.020. APPEARANCE BY COUNSEL. (a) The defendant has a right to appear by counsel as in all other cases.


(Code of Crim. P. art. 45.0215. Juveniles may be an exception, must appear in person with parent.)


Code of Crim. P. art. 45.0511. DRIVING SAFETY COURSE OR MOTORCYCLE OPERATOR COURSE DISMISSAL PROCEDURES.

(e) A request to take a driving safety course or motorcycle operator training course made at or before the time and at the place at which a defendant is required to appear in court is an appearance in compliance with the defendant's promise to appear.


(3) a peace officer that issues a citation under Section

543.003, Transportation Code, or Article 14.06(b) of this code.



Parks & Wildlife Code Failure to Appear


Parks & Wild. Code § 31.004. APPLICATION OF CHAPTER.

The provisions of this chapter apply to all public water of this state and to all vessels on public water. Privately owned water is not subject to the provisions of this chapter.


Parks & Wild. Code § 31.125. VIOLATIONS; NOTICE TO APPEAR. (a) An

enforcement officer who arrests a person for a violation of this chapter may deliver to the alleged violator a written notice to appear within 15 days after the date of the violation before the justice court having jurisdiction of the offense.

(b) The person arrested shall sign the notice to appear promising to make his appearance in accordance with the requirements set forth in the notice. After signing the notice the person may be released. Failure to appear before the court in the county having jurisdiction constitutes a violation of the chapter. A warrant for the arrest of the person failing to appear may be issued.


Parks & Wild. Code § 31.127. PENALTIES.

(a) A person who violates or fails to comply with any provision of this chapter, or who violates or fails to comply with a proclamation of the commission entered under this chapter or a city ordinance or order of a commissioners court or a political subdivision of the state made or entered under this chapter, commits an offense that is a Class C Parks and Wildlife Code misdemeanor.


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Alex Wathen


Office: 10333 Northwest Freeway, Suite 503, Houston, TX 77092 (281) 999-9025

I serve primarily the Greater Houston area with courts and clients in Houston, Spring, Humble, Cypress, Cypresswood, Tomball, Jersey Village, Katy, Spring Branch, Memorial Villages, Bear Creek, West University Place, Southside Place, South Houston, Scarsdale/Sagemont, Wallisville, Baytown, Pasadena, Deer Park, La Porte, Spencer Higway, Clear Lake, Webster, Friendswood, Pearland. Additional areas are served as well. In some cases I am hired to defend tickets far away an hourly basis.

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Board Certified Consumer Bankruptcy Law Texas Board of Legal Specialization. There is presently no certification available for traffic ticket defense, although Alex Wathen is leading the effort to create one with the Texas Board of Legal Specialization.

Licensed to practice law in Texas, the United States District Court for the Southern District of Texas, the United States Courts of Appeals for the First, Third, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits, as well as the United States Supreme Court. This site is neither sponsored, endorsed or approved by the law firm of Kubosh & Associates. Alex Wathen is solely responsible for its contents. This site provides only general information and is not a substitute for a face to face consultation with a traffic ticket defense attorney such as Alex Wathen. Neither is there ever an attorney client relationship created by the use of this site including the submission of any questions or other information. For more information contact Alex Wathen, 10333 Northwest Freeway, Suite 503, Houston, TX 77092, (281) 999-9025