The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Honorable Steve W. Simmons Opinion No. MW-581
Supreme Court Building
District Attorney
P. 0. Box 12546
Austin. TX. 78711. 2548 El Paso, Culberson, Hudspeth Counties Re: Jurisdiction of county
5121475-2501 303 City-County Building courts at law to consider
Telex 9100374.1367 El Paso, Texas 79901 applications for Writs of
Telecopier 5121475-0266
Habeas corpus in felony
casee, and related matters
1607 Main St.. Suite 1400
Dallas. TX. 75201.4709 Dear Mr. Simmons:
2141742J3944
You ask two questions. First, you ask about the jurisdiction of
4624 Alberta Ave., Suite 160
a county court at law to consider an application for writ of habeas
El Paso. TX. 79905.2793 corpus where the underlying offense is a felony. Second, you ask
9151533-3464 whether a county court at law judge, sitting as a magistrate, has
jurisdiction to review the amount of bail previously set by a justice
of the peace acting as a magistrate, or to review a finding regarding
1220 Dallas Ave., Suite 202
Houston, TX. 77002.6986
probable cause previously made by a justice of the peace sitting as a
7131650-0666 magistrate.
By way of illustration, you relate that a justice of the peace,
806 Broadway, Suite 312
acting in his capacity as a magistrate, issued a felony warrant
Lubbock. TX. 79401-3479
8061747.5238
pursuant to a complaint filed in his court. He also set bail.
Following the arrest of the accused, an application for writ of habeas
corpus was filed by the accused in the county court at law. You
4309 N. Tenth, Suite E question whether the county court at law could properly assume
McAllen, TX. 78501-1685 jurisdiction of such a petitioner's application for writ of habeas
5121662.4547
corpus. You also question the power of judges of county courts at
law, sitting as magistrates, to review or modify the orders of other
200 Main Plaza, suite 400 magistrates.
San Antonio, TX. 78205.2797
5121225-4191
When county court at law judges sit in an ordinary judicial
capacity there can be no question about their lack of authority to
An Equal Opportunity/ issue writs of habeas corpus in felony cases. County courts at law
Affirmative Action Employer are essentially constitutional county courts with limited
jurisdiction, Texas Pipe Line Company V. Hunt, 228 S.W.Zd 151, 153
(Tex. 1950), and such courts in El Paso have no jurisdiction of felony
offenses. V.T.C.S., arts. 1970-128, 1970-141.1, 1970-141.2,
1970-141.3, 1970-141.4. Article V. section 16 of the Texas
constitution, as amended September 1, 1981, reads in pertinent part:
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Honorable Steve W. Simmons - Page 2 (MW-581)
The County Court shall have original
jurisdiction of all misdemeanors of which
exclusive original jurisdiction is not given to
the Justices Court.... They shall have appellate
jurisdiction in cases civil and criminal of which
Justices Courts have original jurisdiction.... In
all appeals from Justices Courts there shall be a
trial de nova in the County Court.... [t]he County
Court, or judge thereof, shall have power to issue
writs of injunctions, mandamus and all writs
necessarv to the enforcement of the iurisdiction
”
of said Court, and to issue writs of habeas corpus
in cases where the offense charged is within the
jurisdiction of the County Court, or any other
Court or tribunal inferior to said Court....
(Emphasis added).
The county courts at law of El Paso County have no jurisdiction to
consider an application for writ of habeas corpus where the underlying
offense is a felony. See Ex parte Sullivan, 534 S.W.2d 140 (Tex.
Grim. App. 1976).
The jurisdiction of county court at law judges sitting as
magistrates is another matter. Article 2.09 of the Code of Criminal
Procedure provides:
Each of the following officers is a magistrate
within the meaning of this Code: The justices of
the Supreme Court, the judges of the Court of
Criminal Appeals, the justices of the Courts of
Appeals, the judges of the District Court, the
county judges, the judges of the county courts at
law, judges of the county criminal courts, the
lustices of the peace, the mayors and recorders
and the judges of the municipal courts of
incorporated cities or towns. (Emphasis added).
The jurisdiction of a magistrate is not determined by the jurisdiction
of the court upon which he ordinarily sits. All the magistrates of a
given county have co-equal jurisdiction as magistrates and their
functions as magistrates are the same whether they ordinarily sit as
justices of the peace or as justices of the supreme court of the
state. Ex parte Clear, 573 S.W.2d 224, 2.28 (Tex. Crim. App. 1978).
In Ex parte Clear, e, the Court of Criminal Appeals decided
that a criminal "offense" is the equivalent of a criminal "case" for
purposes of section 4.16 of the Code of Criminal Procedure, which
provides that the court in which a criminal complaint is first filed
shall retain jurisdiction of it when two or more courts have
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. -
Honorable Steve W. Simmons - Page 3 (MW-581)
concurrent jurisdiction of the offense. Although neither the justice
court nor the county court at law, sitting as trial courts, have
jurisdiction of felony cases, they have concurrent jurisdiction s
magistrates over such cases prior to indictment; the Court of Criminal
Appeals held in Clear that section 4.16 is applicable to such
situations. Clear, supra at 229.
Applying that provision to the illustration given above, when the
justice of the peace, acting in his capacity as a magistrate, obtained
jurisdiction over the subject matter of the complaint and over the
accused himself, sole jurisdiction over the complaint attached. Until
such time as the complaint might be dismissed by the justice sitting
as a magistrate, or superseded by the action of the grand jury, or
until the accused waives indictment in accordance with section 1.141
of the Code of Criminal Procedure, no other magistrate could obtain
jurisdiction of the matter. Ex parte Clear, a.
It follows that a county court at law judge, sitting as a
magistrate, does not have jurisdiction to review orders about the
amount of bail or findings regarding probable cause made by another
magistrate who has earlier acquired jurisdiction of the case.
SUMMARY
County courts at law in El Paso County have no
jurisdiction to consider applications for writs of
habeas corpus when the underlying offense is a
felony, nor do judges of such courts, when sitting
as magistrates, have jurisdiction to review or
modify either the amount of bail set or a finding
of probable cause made by a justice of the peace
acting as magistrate in a case over which the
justice has acquired jurisdiction as a magistrate.
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
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Honorable Steve W. Simmons - Page 4 (m-581)
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Charles A. Palmer
Bruce Youngblood
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