January 20, 197 5
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The Honorable Gus L. Lanier Opinion No. H- 500
County Attorney
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Walker County Re: Propriety of filing county
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P. 0. Box 425 court misdemeanor cases in
Huntsville, Texas 77340 a justice of the peace court.
Dear Mr. Lanier:
You have asked our opinion concerning the propriety of filing
complaints alleging offenses within the jurisdiction of a county court in
a justice of the peace court, specifically requesting answers to the
following questions:
1. May complaints for Class A and Class B misdemeanors
be made before a Justice of the Peace?
2. May the Justice of the Peace before whom the subject
complaints are made, docket said complaints and issue
warrants of arrest based on said complaints, when the
defendant is not then in custody?
3. May the Justice of the Peace admit the persons
arrested to bail on said complaints for Class A and Class
B misdemeanors?
4. May the Justice of the Peace before whom such
complaints are made and docketed thereafter transfer
said complaints, warrants of arrest, if any, and bonds
to the County Court where said complaints and informa-
tions, timely presented thereon by the County Attorney,
are simultaneously filed, along with the warrants of
arrest, if any, and bonds?
p. 2250
The Honorable Gus L. Lanier page 2 (H-500)
Class A and Class B misdemeanors, which are so classified by
section 12.03, Penal Code, are offenses which lie within the jurisdiction
of the county courts to try and decide. Such offenses cannot be disposed
of on the merits in a justice court. Tex. Const. art. 5, sets. 16, 19;
Code Crim. Proc. arts. 4.07, 4.11.
However, a justice of the peace, in addition to having criminal
and civil judicial duties imposed by the Constitution and laws of Texas,
is a magistrate. Code Crim. Proc. art. 2.09. As such, he is required
to perform the duties of a magistrate as set out in article 2.10, Code of
Criminal Procedure:
It is the duty of every magistrate to preserve
the peace within his jurisdiction by the use of all
lawful means; to issue all process intended to aid
in preventing and suppressing crime; to cause the
arrest of offenders by the use of lawful means in
order that they may be brought to punishment.
(Emphasis added).
All magistrates are empowered to issue warrants of arrest under
the authority of article 15.03, Code of Criminal Procedure which reads in
part:
(a) A magistrate may issue a warrant of arrest or
a summons:
. . . .
2, When any person shall make oath before the
magistrate that another has committed some offense
against the laws of the State . . . .
Article 15.04 of the Code further provides:
The affidavit made before the magistrate or district
or county attorney is called a “complaint” if it charges
the commission of an offense.
p. 2251
The Honorable Gus L. Lanier page 3 (H-500)
It is clear that any and all offenses defined by the criminal laws
,of Texas, felonies and misdemeanors of whatever classification, may
be made known to any magistrate, including a justice of the peace, by
complaint and that any magistrate can issue a warrant of arrest based
on such complaint.
Your first two questions are, accordingly, answered in the
affirmative --complaints charging the commission of Class A and Class
B misdemeanors may be made before a justice of the peace, and if the
complaint discloses such an offense, the justice may accept and docket
the complaint and issue a warrant of arrest (or a summons as an alternative
to the warrant). Code Crim. Proc. arts. 2.10, 15.03, 45.13.
Your third question concerns the authority of a justice of the peace
to admit persons to bail. Once an arrest has been made pursuant to the
warrant, “the person making the arrest shall without unnecessary delay
take the person arrested or have him taken before some magistrate of the
county where the accused was arrested. I’ Code Crim. Proc. art. 15.17.
At this appearance, the magistrate must advise the person arrested as to
“accusation against him and of any affidavit filed” with such accusation,
advise the defendant of various rights, and “admit the person arrested to
bail if allowed by law. ” (Emphasis added). Code Grim. Proc. art. 15.17.
Acting in his capacity as a magistrate, the justice of the peace
may, “by law, ” release the arrested person upon the giving of proper
bail. Code Crim. Proc. arts. 17.04, 17. 25 and 17. 29. (And see articles
17.08 et seq. of the Code for the requisites of a bail bond). The justice
of the peace may alternatively release the defendant on his personal bond.
Code Crim. Proc. art. 17.03.
Your third question is, therefore, answered “Yes. ” A justice of
the peace before whom an arrested defendant is brought may release the
defendant to bail in any case, including those cases in which a Class A or
Class B misdemeanor is charged.
Your fourth question deals with the transfer of Class A and Class
B misdemeanor cases to the county court for ultimate hearing and determina-
tion. The filing of complaints in the justice court charging misdemeanors
over which the county court has jurisdiction with a subsequent transfer to the
po 2252
l.
...-....m. --
The Honorable Gus L. Lanier page 4 (H-500)
county court finds judicial approval in Duncan v. State, 279 S. W. 457
(Tex. Crim. App. 1926), Gentry v. State, 137 S. W. 696 (Tex. Grim.
App. 1911), Ex parte Holcomb, 131 S. W. 604 (Tex. Crim. App. 1910);
and Lindley v. State, 123 S. W. 141 (Tex. Crim. App. 1909).
The precise question was considered in Attorney General Opinion
V-946 (1949), which held:
[I]t is our opinion that the Justice of the Peace
may accept the complaint in your fadual situation, issue
a warrant, and require bail. But all papers in the case
should be forwarded to the County Clerk for proper
action. Moreover, the County Attorney should prepare
an information, if the Justice Court complaint is other-
wise in proper form, and proceed to trial in the County
Court, said Court having jurisdiction of the offense of
driving while intoxicated.
An earlier opinion seems to have held to the contrary. Attorney
General Opinion O-6742 (1945). However, the opinion is unclear: it
makes no reference to the authority of a justice of the peace as a magistrate
and was not cited in Attorney General Opinion V-946 (1949). If the earlier
opinion was ever authority that a justice cannot accept complaints alleging
offenses beyond the jurisdiction of the justice court and then transfer the
matter to county court or other court with appropriate jurisdiction, it
was not only wrong but was implicitly overruled by Attorney General
Opinion V-946 (1949).
In any event, the language of the pertinent statutory provisions
of the Code of Criminal Procedure makes it clear that the transmission
of the complaint, warrants of arrest, and bond to the county court by
the justice is permissible and proper.
Chapter Seventeen, Code of Criminal Procedure, deals exclusively
with bail after arrest. After concluding the proceeding in which bail is
granted or refused, the magistrate has certain duties as set out in article
17. 30 of the Code:
p. 2253
The Honorable Gus L. Lanier page 5 (H-500)
The magistrate, before whom an examination has
taken place upon a criminal accusation, shall certify
to all the proceedings had before him, as well as
where he discharges, holds to bail or commits, and
transmit them, sealed up, to the court before which
the defendant may be tried, writing his name across
the seals of the envelope. The voluntary statement
of the defendant, the testimony, bail bonds, and every
other proceeding in the case, shall be thus delivered
to the clerk of the proper court, without delay.
Article 17. 31 describes the procedures to be followed after transfer
“to the court before which the defendant may be tried” and provides:
If the proceedings be delivered to a district clerk,
he shall keep them safely and deliver the same to the
next grand jury, If the proceedings are delivered to
a county clerk, he shall without delay deliver them to
the district or county attorney of his county. (Emphasis
added).
Where a complaint and other papers involving Class A and Class
B misdemeanors are delivered to the county clerk and in turn delivered
to the district or county attorney, such attorney will cause an information
to be ~filed in the county court. Code Grim. Proc. arts. 21. 20, 21. 22.
We accordingly answer your fourth question in the affirmative
--complaints and other companion papers involving Class A and Class B
misdemeanors filed in a justice of the peace court may be transferred to
the county court where jurisdiction for trial on the merits lies. An informa-
tion may be filed by the county attorney in the county court upon the receipt
of such complaint.
SUMMARY
Complaints for Class A and Class B misdemeanors
may be made before a justice of the peace. The justice
may docket such complaints and issue warrants of arrest
p. 2254
The Honorable Gus L. Lanier page 6 (H- 500)
thereon. After arrest, the arrested persons may be
admitted to bail by the justice of the peace. Such
complaints, bail bonds and other companion papers
may be transferred to the county court, and the county
attorney may then file an information based on the
complaint.
Very truly yours,
Attorney General of Texas
APPROVED:
h&
DAVID M, KENDA&L, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2255