August 24, 1989
Mr. Pat D. Westbrook opinion NO. JM-1089
Executive Director
Texas Commission for the Blind Re: Enforcement of the sup-
P. 0. Box 12866 port dog laws under chapter
Austin, Texas 78711 121 of the Human Resources
Code (RQ-1749)
Dear Mr. Westbrook:
You refer to the provisions of sections 121.003 and
121.004(a) of the Human Resources Code. Section 121.003
prohibits, inter alia discrimination against visually
handicapped persons acbompanied by support dogs in their use
of public facilities. Section 121.004(a) provides:
(a) A person, firm, association, corpora-
tion, or other organization, or the agent of
a person, firm, association, corporation, or
other organization who violates Section
121.003 of this chapter is guilty of a
misdemeanor and on conviction shall be
punished bv a fine of not le than $100 nor
more than $300. (Emphasis sized.)
You say that "there appears to be confusion regarding
the appropriate legal jurisdiction in enforcing this
law . . . . It appears as though the City is not sure
whether the County should prosecute this matter, and the
County is not sure whether the City should prosecute this
matter." You ask our advice in this respect.
Article V, section 19, of the Texas Constitution
provides in full:
Justice of the peace courts shall have
original jurisdiction in criminal matters of
misdemeanor cases punishable by fine only,
exclusive jurisdiction in civil matters where
the amount in controversy is two hundred
dollars or less, and such other jurisdiction
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Mr. Pat D. Westbrook - Page 2 (JM-1089)
as may be provided by law. Justices of the
peace shall be ex officio notaries public.
The Code of Criminal Procedure, article 4.11, still provides
that justice courts have jurisdiction of misdemeanors "where
the fine to be imposed by law may not exceed two hundred
dollars." This provision was codified into the current Code
of Criminal Procedure in 1965. Acts 1965, 59th Deg., ch.
722, at 331. At that time article V, section 19, of the
constitution still provided that justice court jurisdiction
extended to l'criminal matters of all cases where the penalty
or fine to be imposed by law may not be more than for two
hundred dollars." S.J.R. 14, Acts 1985, 69th Deg., 8 7, at
3359. The current provisions of article V, section 19,
expanding justice court jurisdiction to "misdemeanor cases
punishable by fine only" were adopted in 1985. Id.
We think that the current article V, section 19,
provision in question indicates on its face that it is
self-enacting, i.e., that its provision for justice court
jurisdiction over "misdemeanor cases punishable by fine
onlyto does not require further legislative action to be
given effect. The public notice given for that constitu-
tional amendment election ("The amendment would provide for
the jurisdiction of justice courts, which may have addi-
tional jurisdiction as provided by law.") as well as the
explanatory materials prepared by the Legislative Council
and House Study Group, support, we think, our conclusion.
that the provision is self-enacting and controls over the
narrower jurisdictional provision still found in article
4.11 of the Code of Criminal Procedure. a Analyses of
Proposed Constitutional Amendments Appearing on the November
5, 1985 Ballot, Texas Legislative Council Information Report
No. 85-3, August 1985 ("changes . . . redefine . . . justice
court jurisdictionU*); House Study Group Special Legislative
Report, 1985 Constitutional Amendments, August 23, 1985
("The specific constitutional grants of jurisdiction to
justice-of-the-peace courts in Art. 5, sec. 19, would be
eliminated, except for original jurisdiction over mis-
demeanors punishable by fine only . . . ."); see also, Gov't
Code § 27.031 (providing that justice courts have "the
jurisdiction and powers provided by the constitution and
other law").
Thus, at the county level, justice of the peace courts
would have jurisdiction over the offense described in
section 121.004(a) of the Human Resources Code.
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Mr. Pat D. Westbrook - Page 3 (JM-1089)
Also, at the county level, various criminal district
courts and constitutional and statutory county courts would
have jurisdiction over such offense depending on the
particular county in question. &=g Gov*t Code ch. 24,
subch. E (particular criminal district courtsa;, 1;: ;;.;;z
(county court jurisdiction generally), . - .
(particular county courts), 25.0003 (statutory county court
jurisdiction generally), 25.0031-25.2512 (particular statu-
tory county courts).
The officer performing the criminal law duties of the
county attorney has responsibility for prosecuting offenses
in the above-mentioned courts of the county. Code Crim.
Proc. art. 2.02 (regarding county attorney's duties in
courts of the county "below the grade of district court") .
In some counties these duties are performed by the officer
known as the criminal district attorney. w Gov't Code ch.
44 (for duties of criminal district attorneys in particular
counties). In a few counties they are performed by a
district attorney. m Gov't Code ch. 43 (for duties of
district attorneys in specific counties: particularly, for
example, g 43.180 regarding duties of Harris County District
Attorney to represent the state in criminal cases pending in
district and inferior courts of the county).
Thus, in answer to your question, at the county level
the prosecutor responsible for representing the state in
justice of the peace courts, and in the criminal district
courts and constitutional and statutory county courts where
those latter courts also have jurisdiction over the offense
in question, would be responsible for prosecuting such
offense.1
1. We also note that various particular district
courts are given concurrent jurisdiction with county courts
in criminal matters. In such cases the district attorney
responsible for prosecuting cases in such courts may
prosecute the offense described in section 121.004(a) of the
Human Resources Code. m Code Crim. Proc. art. 2.01
(district attorney#s duty to represent the state in district
court): Gov't Code SS 24.101-24.276, 24.351-24.507
(regarding particular district courts and judicial
districts).
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Mr. Pat D. Westbrook - Page 4 (JM-1089)
Also, in a few cities the city attorney would have
concurrent responsibility with the county level prosecutor
for prosecuting the offense in question. While the juris-
diction of municipal courts proper with respect to criminal
cases arising under state law is limited to offenses
punishable by a fine not to exceed $200 under section
29.003(b) of the Government Code, and such courts would thus
have no jurisdiction over an offense under section
121.004(a), the legislature has authorized certain munici-
palities to create a distinct tribunal called the municipal
court of record. In some instances the legislature has
expanded the jurisdiction of such municipal courts of record
beyond that provided for municipal courts proper, which, as
noted above, have no jurisdiction over the offense you ask
about.
For example, the city of Austin is authorized to create
municipal courts of record having concurrent jurisdiction
with the justice court over criminal cases punishable by
fine only. See Gov*t Code 5 30.323. Thus a municipal court
of record created in Austin could have jurisdiction over a
section 121.004(a) offense, and the city attorney or his
deputies or assistants would be responsible for prosecuting
such case. Gov't Code §§ 30.329, 30.490; see. e.0 id.
55 30.381, 30.383 (a Dallas Municipal Court of Record has
concurrent jurisdiction with justice court over offenses
punishable by fine only). But see id. SS 30.262-30.263
(Houston Municipal Court of Record jurisdiction over
offenses for which justice court has jurisdiction only where
punishable by fine not to exceed $200), 30.141, 30.143 (Fort
Worth Municipal Court of Record jurisdiction over offenses
under state law limited to that of municipal court proper).
See
my id. ch. 30 (the provisions for particular
municipal courts of record).
We also understand that you are concerned about appar-
ent confusion among municipal police and county sheriff#s
office personnel as to their respective responsibilities for
responding to reports of violations of section 121.004(a).
A peace officer, whether a sheriff or sheriff's deputy or a
municipal police officer, has the duty to act to keep the
peace and to report to a magistrate u offenses under state
law committed within his jurisdiction. Code Crim. Proc.
arts. 2.12, 2.13. Therefore it would be appropriate for a
person wishing to report a violation of section 121.004(a)
to contact the sheriff's office or, if the offense was
committed in an incorporated area, the municipal police.
p. 5699
Mr. Pat D. Westbrook - Page 5 (JM-1089)
SUMMARY
The prosecutor at the county level -- the
county attorney or in some cases the criminal
district attorney or district attorney -- has
responsibility for prosecuting the offense
described in section 121.004(a) of the Human
Resources Code, relating to discrimination
against visually handicapped persons using
support dogs in public facilities. Where the
offense is committed in a city having a
municipal court of record with jurisdiction
over such offense, the city attorney may also
prosecute such offense in that court.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
mu MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STKAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 5700