Can a Texas justice of the peace dismiss a traffic ticket if the driver doesn't finish the required driving safety course?

Plain-English summary

In Texas, a justice of the peace handling a minor traffic case can hold off on a conviction and put the driver on probation, a process called deferred disposition. If the driver does what the court asks within the deferral period, the ticket goes away with no conviction on the record. One of the things the court orders in a traffic case is a driving safety course. A Harris County justice of the peace wanted to know what happens when a driver does not finish that course: can the justice still dismiss the ticket, or is the justice stuck?

The Attorney General said the justice cannot dismiss in that situation. The key was a 1991 change to the statute. The Legislature added a sentence saying the justice "shall require" the driver to complete a driving safety course, and the word "shall" there is a command, not a suggestion. The opinion contrasted it with an earlier part of the same statute that says the justice "may require" other things, like posting a bond or getting counseling. Those are optional; the driving course is not.

Because the driving-course requirement was both the newest and the most specific part of the statute, it controlled over the older, more general language about a justice's options. The Attorney General read the whole statute together so that a justice could dismiss a ticket when a driver fell short on one of the optional conditions, but not when the driver failed to complete the mandatory driving safety course. For that failure, the justice had to move forward, either entering a finding of guilt or imposing the fine.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Article 45.54 of the Code of Criminal Procedure has since been renumbered (the deferred-disposition rules for fine-only misdemeanors now appear at article 45A.302 and related provisions), so the section numbers described here have changed; confirm current law before relying on anything described here.

Background and statutory framework

Article 45.54 of the Code of Criminal Procedure set out a deferred-disposition procedure for fine-only misdemeanors handled in justice court. On a guilty or no-contest plea, or a finding of guilt, the justice could defer further proceedings without entering an adjudication of guilt and place the defendant on probation for up to 180 days. Section (2), added by the Legislature in 1991 (Acts 1991, 72d Leg., ch. 835, § 4), provided that during the deferral period the justice "shall require" the defendant to complete a driving safety course when the offense involved operating a motor vehicle. Section (3) provided that the justice "may require" the defendant to meet other conditions.

The Attorney General treated "shall" in section (2) as mandatory, noting the deliberate contrast with the discretionary "may" in section (3). The opinion acknowledged that "shall" is not always mandatory (citing Attorney General Opinion WW-610 (1959), which quoted Hess & Skinner Engineering Co. v. Turney), but concluded that in this context the Legislature intended a command.

Two Code Construction Act rules resolved any tension with the older provisions. Under Government Code section 311.025(a), when statutes are irreconcilable the later-enacted one prevails, and section (2) was newer than the rest of article 45.54. Under section 311.026(b), a specific provision prevails over a general one, and section (2) spoke specifically to the driving safety course while sections (4) and (5) spoke generally to a justice's options. Reading the statute as a whole, the AG concluded the older sentences allowed dismissal only when a defendant failed a discretionary section (3) condition, not the mandatory section (2) course.

Citations

• Code Crim. Proc. art. 45.54 (deferred disposition for fine-only misdemeanors; section (2) "shall require" driving safety course; section (3) "may require" other conditions; sections (4)-(5) options on completion or noncompliance)
• Gov't Code § 311.025(a) (Code Construction Act; later-enacted statute prevails when statutes are irreconcilable)
• Gov't Code § 311.026(b) (specific provision prevails over general provision unless the general one is later and meant to control)
• Hess & Skinner Engineering Co. v. Turney, 203 S.W. 593, 594 (Tex. 1918) (legislature may use "may" and "shall" interchangeably; the word is construed to fit legislative intent), quoted in Attorney General Opinion WW-610 (1959)

Common questions

If I don't finish my court-ordered driving safety course, can the judge still drop my ticket?
Under this opinion, no. The Attorney General concluded that a justice of the peace could not dismiss a complaint when the defendant failed to successfully complete a required driving safety course. The completion requirement was mandatory, so the justice had to proceed to a finding of guilt or impose the fine instead.

What made the driving safety course mandatory rather than optional?
The word "shall" in section (2) of article 45.54, which the Legislature added in 1991. The Attorney General contrasted it with section (3), which used "may" for other conditions like a bond or counseling, and read "shall" as a command.

Could the justice dismiss for failing other probation conditions?
The opinion read the statute to allow dismissal when a defendant fell short on a discretionary condition the justice had chosen to impose under section (3), but not when the defendant failed the mandatory driving safety course under section (2).

Why did the 1991 amendment control over the rest of the statute?
Two Code Construction Act rules. The later-enacted provision prevails over an irreconcilable earlier one (Gov't Code § 311.025(a)), and the more specific provision prevails over the general one (Gov't Code § 311.026(b)). Section (2) was both newer and more specific.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0230
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0230.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 23, 1993

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002-1891

Opinion No. DM-230

Re: Whether article 45.54 of the Code of Criminal Procedure permits a justice of the peace to dismiss a complaint against a defendant who has failed to successfully complete a driving safety course (RQ-512)

Dear Mr. Driscoll:

On behalf of a justice of the peace in Harris County, you ask whether article 45.54 of the Code of Criminal Procedure permits a justice to dismiss a complaint against a defendant who has failed to successfully complete a driving safety course. We conclude that article 45.54 does not permit a justice to do so.

Article 45.54 provides in pertinent part:

(1) On a plea of guilty or nolo contendere by a defendant or on a finding of guilt in a misdemeanor case punishable by fine only and payment of all court costs, the justice may defer further proceedings without entering an adjudication of guilt and place the defendant on probation for a period not to exceed 180 days. . . .

(2) During the deferral period, the justice shall require the defendant to successfully complete a . . . driving safety course, if the offense alleged is an offense involving the operation of a motor vehicle . . . .

(3) During said deferral period, the justice may require the defendant to:

. . . .

(4) At the conclusion of the deferral period, if the defendant presents satisfactory evidence that he has complied with the requirements imposed, the justice shall dismiss the complaint, and it shall be clearly noted in the docket that the complaint is dismissed and that there is not a final conviction. Otherwise, the justice may proceed with an adjudication of guilt. After an adjudication of guilt, the justice may reduce the fine assessed or may then impose the fine assessed, less any portion of the assessed fine that has been paid. If the complaint is dismissed, a special expense not to exceed the amount of the fine assessed may be imposed.

(5) If at the conclusion of the deferral period the defendant does not present satisfactory evidence that the defendant complied with the requirements imposed, the justice may impose the fine assessed or impose a lesser fine. The imposition of the fine or lesser fine constitutes a final conviction of the defendant.

. . . .

Code Crim. Proc. art. 45.54 (emphasis added).

We conclude that article 45.54 does not permit a justice of the peace to dismiss a complaint against a defendant who fails to successfully complete a required driving safety course for the following reasons. Section (2) states that a justice "shall require the defendant to successfully complete a . . . driving safety course." Although the connotation of the term "shall" is not always mandatory,¹ we believe the legislature intended it to be mandatory in this context. The use of the term "shall" in section (2) is in direct contrast to the use of the term "may" in section (3), which provides that "the justice may require the defendant to" comply with certain other conditions, such as posting a bond or submitting to professional counseling. In enacting section (2), the legislature clearly intended to mandate justices to require defendants to successfully complete driving safety courses.

Furthermore, we note that section (2) was added to article 45.54 by the legislature in 1991, and therefore postdates the article's other provisions. See Acts 1991, 72d Leg., ch. 835, § 4, at 2889. Therefore, to the extent section (2) conflicts with other sections of article 45.54, section (2) must prevail. Gov't Code § 311.025(a) (Code Construction Act) (if statutes are irreconcilable, the statute latest in date of enactment prevails); see also Attorney General Opinion JM-1237 (1990) at 6. In addition, sections (4) and (5) set forth a justice's options when a defendant has failed to comply with the requirements, but do not expressly address whether or not a justice must require a defendant to successfully complete a driving safety course. Section (2), on the other hand, specifically addresses this issue. Therefore, in the event that sections (4) and (5) conflict with section (2), the more specific provision, section (2), must prevail. Gov't Code § 311.026(b) (if a conflict between a general provision and a special provision is irreconcilable, the special provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail); see also Attorney General Opinion JM-1237 at 6.

The first sentence of section (4) requires a justice to dismiss a complaint against a defendant who has complied with the requirements imposed, but the remaining sentences are less specific about a justice's duties with respect to a defendant who has failed to do so. You point out that the remaining three sentences of section (4) and section (5) are somewhat ambiguous. You state that these provisions can be construed to permit a justice to dismiss a complaint against a defendant who has failed to successfully complete a driving safety course. In particular, you base your contention on the final sentence of section (4). That sentence, which follows two sentences regarding a justice's options when a defendant fails to comply with the requirements imposed, states, "If the complaint is dismissed, a special expense not to exceed the amount of the fine may be imposed." You believe that this sentence can be construed to expressly permit a justice to dismiss a complaint against a defendant who has failed to successfully complete a driving safety course. You also rely on the repeated use of the term "may" in the remainder of section (4) and in section (5), which you believe suggests that a justice has the discretion to decide whether or not to proceed with an adjudication of guilt or to impose a fine in such circumstances. You suggest that the last three sentences of section (4) and section (5) conflict with section (2). We disagree.

The last three sentences of section (4) and section (5) predate section (2), and do not distinguish between situations in which a defendant has failed to successfully complete a driving safety course, a requirement which a justice is mandated to impose under section (2), and those in which a defendant has failed to comply with requirements under section (3), requirements which a justice may impose at his or her discretion. These provisions do not expressly permit a justice to dismiss a complaint against a defendant who fails to successfully complete a driving safety course, and need not be read to do so. Rather, the last three sentences of section (4) and section (5) can be harmonized with section (2) if they are construed to permit justices to dismiss complaints against defendants who fail to successfully complete requirements imposed pursuant to justices' discretion under section (3), but not to permit justices to dismiss complaints against defendants who fail to successfully complete a driving safety course.

Accordingly, we conclude section (2) mandates a justice to require a defendant to successfully complete a driving safety course, and that sections (4) and (5) do not permit a justice to dismiss a complaint against a defendant who has failed to successfully complete a driving safety course.

SUMMARY

Article 45.54 of the Code of Criminal Procedure does not permit a justice of the peace to dismiss a complaint against a defendant who has failed to successfully complete a driving safety course.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

¹ As this office noted in Attorney General Opinion WW-610 (1959), the legislature frequently uses "may" and "shall" interchangeably. Attorney General Opinion WW-610 at 3 (quoting Hess & Skinner Engineering Co. v. Turney, 203 S.W. 593, 594 (Tex. 1918)). Whichever word the legislature has used must be construed in accordance with the legislative intent. Id. (quoting Hess & Skinner Engineering Co., 203 S.W. at 594).