# Kutner v. Russell

> Court of Criminal Appeals of Texas · July 6, 1983 · 658 S.W.2d 585

URL: https://www.frixlaw.com/law-library/cases/9682709

## Case

- **Full name:** William A. KUTNER, Petitioner, v. Steve RUSSELL, Judge, County Court at Law No. 2, Respondent
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** July 6, 1983
- **Citations:** 658 S.W.2d 585; 1983 Tex. Crim. App. LEXIS 1113
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Clinton, Teague, Onion, Davis, Miller
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9682709

## How later opinions describe it (automated extraction)

- noting several translations of the Latin phrase "de novo ”

## Opinion text

*587 OPINION DENYING PETITIONER’S MOTION FOR LEAVE TO FILE A MOTION FOR REHEARING
PER CURIAM.
The unanimous opinion of this Court on original submission denied an application for mandamus to compel the respondent Judge of a County Court at Law to defer proceedings and allow petitioner to take and successfully complete an approved driving safety course, to the end that the traffic violation of which he had been charged and convicted in an Austin municipal court would be dismissed. It was on appeal to the county court at law that petitioner had first invoked the provisions of Article 6701d, § 143A(a)(2), V.A.C.S., as the opinion of the Court undertook to make clear by also eliding § 143A(a)(l ), 1 and by excerpting the written order of respondent that, in turn, alluded only to § 143A(a)(2). 2 In essence we held that it was too late for such an accused to demand that proceedings be deferred under the mandatory provisions of § 148A(a)(2), having earlier opted in the municipal court to go to trial on the accusation rather than to move to defer proceedings to take a driving course and having been convicted of the traffic violation, and then appealing to county court at law for a trial de novo.
Nothing in petitioner’s motion for rehearing persuades us that the initial opinion of the Court was in error in any respect. 3 In rejecting his motion for leave to file we write only to underscore that which was decided and to point out that our decision does not at all implicate § 143A(a)(l) — the discretionary deferral of proceedings.
The motion for leave to file a motion for rehearing is denied.
. Section 143A(a)(l) provides in pertinent part that when a person is charged with a misdemeanor offense under the Act, with two exceptions, the court:
“(a) in its discretion may defer proceedings and allow the person 90 days to present evidence that ... the person has successfully completed a defensive driver’s course...;” (All emphasis is added throughout by the writer of this opinion unless otherwise indicated.)
. “[T]his court has no statutory power to grant defensive driving under Art. 670Id, Section 143A(a)(2), as amended.”
Still, it must be noted, our opinion did not approve that finding of respondent.
.An amicus curiae would have us clarify on rehearing “to better guide the bench and bar” the matter of the right of an accused to reliti-gate de novo before an appellate court denial by the court below of an oral request or written motion to defer proceedings to take a defensive driving course, followed by being put to trial over objection. Since the instant cause is not in that procedural posture, we decline the invitation and reserve the issue until squarely presented.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682709. Public record. Not legal advice.