Has there been a good resolution regarding offering deferred adjudication to CDL holders for speeding tickets? Since C.C.P. 45.051 applies to municipal and justice courts, does it preclude CA's from offering deferred to a CDL holder if it has been appealed to county court, an information signed and a new case opened?

Disclaimer: I have never personally handled one of those cases.

42.111 allows a D to take advantage of 45.051 in a class C case appealed to county court. However, 45.051 (f) states that 45.051 does not apply to traffic violations by a CDL holder.

We do these on a fairly regular basis. One of our JP precincts includes a DPS weigh station, which generates a very high number of CDL impacting citations. It's become fairly standard practice for the CDL holders to plea Nolo, file an appeal, and accept a 6 month deferred with fine and court costs in the County Court at Law. My reading is that since the entire appeal is de novo, soup to nuts, the full range of punishment is then available in the CCL.

Now, the flip side argument is that 42.111 provides for deferral "in the same manner as provided for... under 45.051." I interpret this to mean the 180 day max deferral, special expense fee not exceeding the fine amount, etc. However, you could argue that since 45.051 prohibits deferral in this situation, giving one under 42.111 is inconsistent with the "in the same manner as" language.

Here, though, I think is the important thing. A Westlaw search shows a single, unpublished appellate case dealing with 42.111, and then immediately finds it inapplicable. Retzlaff v. Bell County Attorney's Office, 1999 WL 816175 (Tex.App.-Austin,1999). I think a fair reading of the statute can be construed either way, and which ever way your local judge reads it... Well, that's the law in your county.

we have taken the firm stance that CDL driver's don't get deferred, even on appeal to the CCL. the few attorneys that represented the CDL drivers on a regular basis in our jurisdiction didn't like it at first, we had some trials, but now i think they simply aren't taking the CDL cases in our jurisdiction as we just aren't having to deal with them much anymore. when we have a CDL appeal come in from JP court, the staff orders the DPS video right away, it gets put in the file, and we are ready for trial if need be. some of these guys have terrible driving records, and i don't want to be on the road with them. i think it's crazy to give them all deferred just because they appeal.

one of our JP court clerks gave us an article...i'd link to it, but can't find it online. if you want to look for it, it's out of the TJCTC (texas justice court training center) quarterly report, vo. 14 no. 3 august 2010.

it basically says the law is "very clear" under 45.011 and 45.051 that CDL holders don't get deferred. although, it does not cite any TX case law, it does cite TN law which is supposedly similar to ours.

but what i found really interesting is this: 49 C.F.R. sect. 384.226. Prohibition on Masking Convictions. State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent the CDL driver's conviction for any violation, in any type of motor vehicle, of a State or local traffic contral law (except a parking violation) from appearing on the driver's record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State.

the authors discuss the FMCSA views of what constitutes masking--which the FMCSA stated for masking or diversion to occur, there must first be a judgment of guilt. so a dismissal based on insufficient evidence is not masking. (well, duh.) and, prosecutors have the discretion to plea the case down by amending the charge to a lesser speed... but we can't allow them to plead, then give them traffic school and a dismissal, etc. But, evidently even FMCSA officials don't agree on everything...another guy said allowing the CDL driver to plead to something that doesn't go on his record is masking.

just thought i'd throw this out there...something new on the front.

My county has several rock crushers and along with that comes hundreds of rock trucks. We have 5 or 6 CVE guys working full time. One of our precints has the majority of the truck used roads as well as a weigh station.

My policy has generally been that I do not offer deferred at the county level. We make a few exceptions depending on the case but most attorneys have figured it out and we don't have many problems.

From reading the above case, it sounds like Waco CA is saying that a County Court can give deferred to anyone except CDL holders who have committed "serious traffic violations."

Am I way off base?

text of case:

http://caselaw.findlaw.com/tx-court-of-appeals/1540831.html

It seems, based on reading the archives of the TDCAA forums that the consensus is that CDL drivers cannot get deferred for tickets.

However, there hasn't been a lot of caselaw in Texas on this point. I read that recent State v. Hollis No. 10-09-00330-CR.Oct. 6, 2010. from the Waco Court of Appeals, but it hasn't helped much.

I may have a misunderstanding of how these laws have evolved, but it seems there are instances where a defendant can get deferred from a county court for certain offenses.

I can see a possibility that a CDL holder will get deferred if they do not commit a serious traffic violation as defined by Transportation Code Section 522.003 (25):

(25) "Serious traffic violation" means:
(A) a conviction arising from the driving of a motor vehicle, other than a parking, vehicle weight, or vehicle defect violation, for:
(i) excessive speeding, involving a single charge of driving 15 miles per hour or more above the posted speed limit;
(ii) reckless driving, as defined by state or local law;
(iii) a violation of a state or local law related to motor vehicle traffic control, including a law regulating the operation of vehicles on highways, arising in connection with a fatal accident;
(iv) improper or erratic traffic lane change;
(v) following the vehicle ahead too closely; or
(vi) a violation of Sections 522.011 or 522.042; or
(B) a violation of Section 522.015.



Both Article 45.0511(s) and 45.051(f) from the Texas Code of Criminal Procedure do not permit deferred/dismissals after completion of a driver safety course. However, it seems that these rules regulate JP and Municipal courts.

Art. 45.0511. Driving Safety Course or Motorcycle Operator Course Dismissal Procedures
(s) This article does not apply to an offense committed by a person who:
(1) holds a commercial driver's license; or
(2) held a commercial driver's license when the offense was committed.

Title 1. Code of Criminal Procedure of 1965
Justice and Municipal Courts
Chapter 45. Justice and Municipal Courts (Refs & Annos)
Subchapter B. Procedures for Justice and Municipal Courts (Refs & Annos)

Art. 45.051. Suspension of Sentence and Deferral of Final Disposition
(f) This article does not apply to:
(1) an offense to which Section 542.404, Transportation Code, applies; or
(2) a violation of a state law or local ordinance relating to motor vehicle control, other than a parking violation, committed by a person who:
(A) holds a commercial driver's license; or
(B) held a commercial driver's license when the offense was committed.
Title 1. Code of Criminal Procedure of 1965
Justice and Municipal Courts
Chapter 45. Justice and Municipal Courts (Refs & Annos)
Subchapter B. Procedures for Justice and Municipal Courts (Refs & Annos)



When the case is appealed to County Court, there appears to be more leeway:

Art. 42.111. Deferral of Proceedings in Cases Appealed to County Court
If a defendant convicted of a misdemeanor punishable by fine only appeals the conviction to a county court, on the trial in county court the defendant may enter a plea of guilty or nolo contendere to the offense. If the defendant enters a plea of guilty or nolo contendere, the court may defer further proceedings without entering an adjudication of guilt in the same manner as provided for the deferral of proceedings in justice court or municipal court under Article 45.051 of this code. This article does not apply to a misdemeanor case disposed of under Subchapter B1, Chapter 543, Transportation Code, or a serious traffic violation as defined by Section 522.003, Transportation Code.

I can see ambiguity with the "in the same manner" language of 42.111 - are they referred to the deferral scheme, or does "in the same manner" mean to exclude commercial drivers. Because later in this statute they specifically exclude 2 types of cases that can't get deferred. Subchapter B under Chapter 543 addresses cases where the defendant had a shot at deferred at the JP level, messed up and is appealing. That person isn't going to get deferred again. What is interesting is that 522.003 regulates commercial driver's licenses, and they specifically exclude deferred adjudication for drivers who commit a serious traffic violation under that offense.

Basically, it seems CDL drivers can get deferred for tickets I see on the docket such as speeding less than 15mph, failure to yield right of way at stop sign, failure to control speed, failure to yield to emergency vehicle, unauthorized radar detector...

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