Untitled Texas Attorney General Opinion ( 2000 )

OWlCE OF THE ATTORNEY GENEML STATE OF TEXAS
JOHN CORNYN
December 15,200O
The Honorable Senfronia Thompson Opinion No. JC-03 17
Chair, Committee on Judicial Affairs
Texas House of Representatives Re: Whether the addition ofcertain protest words
P.O. Box 2910 to a traffic citation constitutes a valid promise to
Austin, Texas 78768-2910 appear in court (RQ-0270-JC)
Dear Representative Thompson:
In 1999, this office opined on certain general principles of contract law with respect to the
potential effect of certain protest words written under a signature on an Internal Revenue Service
form. See Tex. Att’y Gen. Op. No. JC-0153 (1999). The constituent for whom you inquired on that
occasion now wishes to know the effect ofthe same or similar formulae ofprotest on a traffic ticket.’
Your constituent has, in our view, misunderstood the distinction between contract law, which
governs the relations of particular parties who have come to an agreement, and public law, which
governs all persons within that law’s jurisdiction.
While it matters for the purpose of contract law whether or not two parties have agreed to be
bound to certain conditions in a bargain, it is of no consequence whether any individual agrees to
be bound by the traffic regulations or penal laws of the State of Texas. So long as such a person is
in Texas, he or she is bound by those laws. See United States v. Masat, 948 F.2d 923,934 (5th Cir.
1991) (rejecting argument that court lacks jurisdiction over one who declares himself “non-citizen,”
“non-resident” and “freeman”). Your constituent’s legal obligation to appear in court does not
require his agreement. His choices in the matter are simple. When he is stopped, the police officer
has the discretion to issue him a ticket or take him into custody. Ifthe police officer issues the ticket,
your constituent can sign it or be arrested. On the indicated court date he can appear in court, or he
can subject himself to arrest. He cannot, merely by writing “forced to sign under threat, duress and
coercion”’ on his traffic ticket, avoid the consequences of the traffic laws.
‘See Letter from Honorable Senfronia Thompson, Chair, Committee on Judicial Affairs, Texas House of
Representatives, to Honorable John Comyn, Texas Attorney General (Aug. 17,200O) (on file with Opinion Committee).
‘Letter from Charles Louis Bailey III, to Honorable SenfroniaThompson, Chair, Committee on Judicial Affairs,
Texas House of Representatives (June 6,200O) (on tile with Opinion Committee) [hereinafter Charles Louis Bailey III
(continued...)
The Honorable Senfionia Thompson - Page 2 (JC-0317)
The statutes in question here are to be found in subchapter A, chapter 543 of the
Transportation Code. Pursuant to section 543.001, a peace officer may arrest without warrant a
person found committing any of a variety of traffic violations? See TEX. TRANSP. CODE ANN. 5
543.001 (Vernon 1999). The police officer then either takes the arrestee “immediately before
a magistrate,” id. 4 543.002, or issues “a written notice to appear in court,” id. 5 543.003 (Vernon
Supp. 2000). Such a notice is to be issued if “the offense charged is speeding or a violation of the
open container law; . and the person makes a written promise to appear in court as provided by
Section 543.005.” Id. 5 543.004. “To secure release, the person arrested must make a written
promise to appear in court by signing the written notice prepared by the arresting officer. The
arresting officer shall retain the paper or electronic original of the notice and deliver the copy ofthe
notice to the person arrested. The officer shall then promptly release the person from custody.” Id.
5 543.005. The appearance date on the notice must be at least ten days later “unless the person
arrested demands an earlier hearing.” Id. 5 543.006 (Vernon 1999). A will%1 violation ofthe written
promise to appear is a misdemeanor. See id. 5 543.009.
The import of this statutory scheme is clear. When a policeman stops a driver for a moving
violation, he writes a ticket. The driver signs the ticket, thereby promising to appear in court. If the
driver does not sign the ticket, he is not released. If the driver signs the ticket and does not appear
in court, he is subject to arrest.
Your constituent, however, appears to believe that he may escape the consequences of
chapter 543 of the Transportation Code. He has asked you:
By placing these words after one’s signature, “forced to sign under
threat, duress and coercion,” when no “meeting of the minds has
occurred,” and the ticketed party has no intentions of making a
court appearance, is the signatory relieved of his promise to appear in
court if no adhesion contract exists?4
Your constituent has noted the conclusion of Attorney General Opinion JC-0153 that such
a form ofwords, when appended to a contract, “may indicate that the person signing has not agreed
to the terms of the document, and consequently that there has been no ‘meeting of the minds’ that
is necessary to form a binding agreement.” Tex. Att’y Gen. Op. No. JC-0153 (1999) at 4. He then
z(...continued)
Letter].
‘Thequestionofwhetheranarrest foramisdemeanorpunishable only by afineviolatestheFourth Amendment
of the Constitution is at present before the United States Supreme Court in Atwater v. City ofLago Vista, 195 F.3d 242
(5th Cir. 1999), cert. granted, 120 S.Q. 2715 (2000) (No. 99-1408).
‘Charles Louis Bailey III Letter, supra note 2, at 1.
The Honorable Senfronia Thompson - Page 3 (X-0317)
makes the assumption that a traffic ticket is a contract. His implicit argument is that the contract is
void, because it is adhesive and he has not truly agreed to it.
We note, as a preliminary matter, that even were we to accept the notion that a traffic stop
is a bargaining session in which the writing of a ticket is an offer and the signing of the ticket an
acceptance, the principles ofcontract law would not provide your constituent with the reliefhe seeks,
It is hombook law that “[a] person will not be permitted to accept the beneficial part of a transaction
and repudiate the disadvantageous part. In other words, one who retains benefits under a transaction
cannot avoid its obligations, and is estopped to take a position inconsistent therewith. Similarly, one
cannot accept and reject the same instrument, or, having availed himself of the benefits conveyed
by a part of an instrument, reject its other provisions,” 34 TEX. JUR. 3~ Esfoppel 3 13 (1984).
Transparently, amotorist who signs a ticket and drives away rather than spending the night in police
custody has availed himself of what a reasonable person would regard as a very substantial benefit.
He cannot then be heard to say that he has no intention to appear in court.
The traffic laws of this state are, however, no more a matter of contract than are its penal
laws. They govern all those within the jurisdiction of Texas; they cannot be evaded at whim by a
verbal formula. Your correspondent’s apparent notion that his relation to our laws is purely
contractual, and as such may be unilaterally abrogated by him, has no basis in law. See Coyle v.
Sfate, 775 S.W.2d 843, 847 (Tex. App.-Dallas 1989, no writ) (rejecting argument that defendant
“has cancelled all contracts that would require her, in her view, to recognize any authority other than
God.“); cf: Barcroft Y. State, 881 S.W.2d 838, 840 (Tex. App.-Tyler 1994, no pet.) (Uniform
Commercial Code inapplicable in criminal trial for exceeding speed limit).
Having signed a traffic ticket, one is obliged to appear in court. Wilful failure to so appear
is a misdemeanor. See TEX. TRANSP. CODE ANN. § 543.009 (Vernon 1999). The law does not
contemplate that any mental reservations with which one signs, or any form of words one appends
to that signature, will have the remotest effect on one’s obligation to appear.
The Honorable Senfronia Thompson - Page 4 (JC-0317)
SUMMARY
The addition of protest words to a signature on a traffic ticket
has no effect whatsoever on the obligation of the ticketed party to
appear in court.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General - Opinion Committee