It was recently brought up at my department by officers about the issuance of Class-C Citations, in which the offense was NOT observed by the officer. Examples:

DPS frequently issues " Fail to control speed " Citations after someone runs into the back of another vehicle, or following too closely.

A person exits a private driveway onto a highway, makes a left, and is struck by another vehicle already on the highway. Cite for fail to yield-emerge from private driveway, in this case after a motor vehicle crash.

What was brought up was since the offense didn't happen in the Officers presence or view, the citation may not be valid.

Is there something written in the Transportation or criminal code of procedures that authorizes this specifically?

I have issued citations for fail to yield after motor vehicle crashes when it's pretty obvious what happened, or for fail to control speed after someone crashed into a wall for no other reason than they were driving too fast for conditions.

Any case law, or maybe something in the CCP that would clarify this for the other officers? I have no problem with issuing fail to yield ( since there is evidence of the violation ) and the fail to control speed.

I'm a municipal Peace Officer in Bexar County.

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Well I don't have any specific authority to cite but all you ever need to issue a citation is probable cause to believe that the law has been violated. Probable cause can absolutely be established without the officer personally viewing the offense occur, if supported by the totality of the circumstances.

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Originally posted by Adam Poole:
Well I don't have any specific authority to cite but all you ever need to issue a citation is probable cause to believe that the law has been violated. Probable cause can absolutely be established without the officer personally viewing the offense occur, if supported by the totality of the circumstances.

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I agree!!! However some other's don't. Curious if anyone has fought it in court, and won because the officer didn't SEE IT....

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Maybe your acquaintances are confusing this situation with the exception to the exception to the warrant requirement that allows an ARREST for an offense committed within the view of an officer to be made without a warrant. Merely issuing a citation is MUCH different, since the person to whom the citation is issued is not restrained of their liberty. The answer could be different IF rather than issuing a citation you were placing a person under arrest for an offense that did not occur within the view of the officer. I am not aware of ANY requirement that an officer witness the offense for which the citation is issued.

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Originally posted by Larry L:
Maybe your acquaintances are confusing this situation with the exception to the exception to the warrant requirement that allows an ARREST for an offense committed within the view of an officer to be made without a warrant. Merely issuing a citation is MUCH different, since the person to whom the citation is issued is not restrained of their liberty. The answer could be different IF rather than issuing a citation you were placing a person under arrest for an offense that did not occur within the view of the officer. I am not aware of ANY requirement that an officer witness the offense for which the citation is issued.

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I brought that up also. Since the person is being detained to issue a citation, they really ARE under temporary arrest.

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I think the cases are very clear that a temporary detention is NOT an arrest. Otherwise nearly any "non-custodial" statement would be given during an "arrest" since the person giving the statement would perhaps not feel free to leave. Having taught criminal law and specifically search & seizure for a number of years, I would not have any problem with an officer issuing a citation without actually witnessing the offense. IF your colleagues are correct about the temporary detention to issue the citation being an "arrest" then imigaine a DWI stop where NONE of the defendant's statements are admissible because the defendant is "under arrest" while performing the FST's?!

So, detaining a person to issue a citation does NOT equal an arrest, unless the detention is unnecessarily lengthy - but that's a whole different argument.

Check out the May 2007 of The Municipal Court Recorder. It contains PartII of an article on Citations, which is subtitled, "Tickets are for Concerts and Sporting Events. The author is Ryan Kellus Turner who is the TMCEC General Counsel and Director of Education for the organiation. One of the questions he addresses in the article is "14. does the law authorize citations to be issued by mail?". His answer is "no." He analogizes a citation to an "arrest and release," and points out that an officer cannot arrest a person by mail. He goes on to state that an officer should only issue a citation (mailed or not) under the same circumstances the officer can make a warrantless arrest. In other words, if the officer didn't see the person commit an offense (which the officer didn't in the case of an accident), he cannot rely on 14.01 CCP. Instead, he must look to 14.03(a)(1), CCP which authorizes a warrantless arrest when an officer has PC the person committed a felony of breach of the peace, and the person is in a suspicious place. DWI is a breach of the peace. Failure to control speed is not a breach of the peace. Nor is speeding or most traffic offenses according to the courts. Hence, according to TMCEC, if the officer wants to cite a person for a traffic violation following an accident where he didn't witness the offense being commided, the officer should file the PC affidavit and ask the court to issue a summons which can be mailed. There is a cite to Carson v. State, 65 S.W. 3d 774 (Fort Worth)in the article, although in the footnote the author notes that the court granted the petitioner's expunction petition because Carson actually submitted to the officer's assertion of auhority by appearing as indicated on the citation.

It seems clear that the question of whether an officer can issue a citation to a person for an offense the officer did not witness depends first of on answering a predicate question: is a citation the equivalent of an arrest.

Thoughts??

Janette A

In Douglas v. Buder, 412 U.S. 430, 431-432 (U.S. 1973), the United States Supreme Court wrote,
"The apparent premise upon which respondent proceeded in revoking petitioner's probation was that petitioner had failed promptly to report an 'arrest.' But the issuance of the traffic citation was not an 'arrest' under either Missouri or Arkansas law. By statute, Missouri defines an 'arrest' as 'an actual restraint of the person of the defendant, or . . . submission to the custody of the officer, under authority of a warrant or otherwise.' Mo. Rev. Stat. � 544.180 (1953). Similarly, Arkansas defines an 'arrest' as the 'placing of the person of the defendant in restraint, or . . . submitting to the custody of the person making the arrest.' [*432] Ark. Stat. Ann. � 43-412 (1947). The record before us discloses absolutely no evidence that petitioner was subjected to an 'actual restraint' or taken into 'custody' at the scene of the accident or elsewhere. Consequently, we conclude that the finding that petitioner had violated the conditions of his probation by failing to report "all arrests . . . without delay" was so totally devoid of evidentiary support as to be invalid under the Due Process Clause of the Fourteenth Amendment. Thompson v. Louisville, 362 U.S. 199 (1960); Garner v. Louisiana, 368 U.S. 157 (1961)."

In Texas, a person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant. Tex. Code Crim. Proc. art. 15.22, See also Medford v. State, 13 S.W.3d 769 (Tex. Crim. App. 2000).

It seems pretty clear that, under Texas law, issuing a citation is not the equilavant of an arrest.

I'm glad this came up, as I get asked questions like this from time to time - most recently this morning! Generally speaking, I believe that if the officer does not have grounds to arrest the violator at the time the citation is issued, it would be improper to detain the person in order to issue the citation, and refusal to sign the citation does not justify a warrantless arrest.

The Transp. Code authorizes "arrest without warrant" of any person "found committing a violation," and then goes on to require that the "person arrested" be taken to a magistrate or else cited and released. The person is referred to as "arrested" and the encounter is referred to as an "arrest" repeatedly. (Secs. 543.001 and following).

Even though a traffic stop is not an arrest for all purposes, the Court of Criminal Appeals has
characterized a traffic stop as an arrest in which the officer's options are limited (take to magistrate or cite and release). Montgomery v. State, 170 S.W.2d 750 (1943).

The Parks and Wildlife Code authorizes TPWD officers to "arrest without a warrant" any person "found in the act of violating any law," and allows the officer making the "arrest" to cite and release (Sec. 11.019 and 12.106).

The cite and release provision of the CCP also appears to be predicated on the arrest of the offender (Art. 14.06).

So my thoughts are:
1) An officer should not detain a person to issue a citation for a traffic violation or a wildlife violation unless the officer has statutory authority to arrest the violator under the applicable Code or the CCP. Mr. Turner pretty much described when there is statutory authority to arrest.
2) It is OK to cite a person when there are not grounds to arrest, as long the encounter is a voluntary one and the person is not detained.
3) I have no objection to mailing a citation. If the person appears in court, fine. However, the officer must understand that (1) failure to sign the promise to appear is not grounds for a warrantless arrest, and (2) failure to appear to answer the citation is not a crime. If the person refuses to sign a mailed citation or signs but fails to appear in court, the officer should act as if the citation was never issued and seek a summons or an arrest warrant. The same goes for finding the person and issuing a citation after the crime has been investigated and grounds to arrest no longer exist.

I will leave it to the criminal law gurus on this site to hash out whether the law permits a citation under the circumstances debated above. But going back to the original question (whether an officer may issue a citation for an offense he did not witness) I believe the problem is really an evidentiary one. An officer surveying the scene of an accident may be able to articulate sufficient facts to establish probable cause that a crime was committed (e.g., failure to control speed), thereby justifying the issuance of a citation, but be unable to establish proof beyond a reasonable doubt at trial given the lack of any evidence beyond the officer's mere conjecture.

I agree that it is an evidentiary problem. I prosecuted Class Cs for 4 years. Most often, the Officer's conclusion is based on what he was told at the scene. Essentially, the facts are all hearsay. Of course, the Office can testify that he interviewed Witnesses A, B, C, et al., and that based on what he was told, he concluded that the Defendant had committed the charged offense. Not the most compelling evidence to say the least.

If the Officer included a report with the citation, the Courts rarely, if ever, send notices or subpoenas to the witnesses listed. Our volume was too high for me to scope out the files in advance and request subpoenas, so I had to rely on the Courts' clerks to notice the need for non-Officer witnesses.

This last bit was also a problem on Class C Assault and theft cases.

Great information. I think theres no problem citing for things where you have some evidence beyond what a witness is saying.

If two cars collide in an intersection at a 4 way stop in the middle of the intersection, one says the other ran the stopsign, the other says the other one ran the stopsign would I write a citation?

NO! The reason is because there is no way to tell for sure who ran it, who failed to yield.

Now, in an instance where I investigated a crash a few weeks ago, a guy approached a red light, wanting to make a left turn. The light turned green, and he cut the corner and made his left turn. As the light turned green, a vehicle approaching from the opposite side continued without stopping, without running the red light. No violation committed.


The other vehicle made it's left turn in the path of the traffic coming the other way, was struck broadside.

Guy turning says he had a green light. Traffic on other side said they had a green light too. Witness's all saying the same thing. There is a left turn arrow at the intersection for the left-turning lane, however the driver didn't make it to the intersection in time to activate the arrow.

I cited the driver who made a left turn for fail to yield in intersection, since he has to yield making his left turn no matter what.

Again I didn't see it, but the evidence of the crash, and witness's provided my evidence.

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