A-“A’P\’ ‘Iml%MlaAx.
July 6' 1966
Honorable Carol S. Vance Opinion No. C- 718
District Attorney
Harris County Re: City Judge's power as
Houston, Texas magistrate to accept com-
plaints, issue warrants :and
Dear Mr. &cc: hold examining trials.
In an opinion requeat to thla office you pose the
following queationa:
"1. Can a,city judge, sitting as a m&a-
trate in a case he c¬ try as a
judge, but which occurred within the
city, do the following:
a. Accept complaintP
b. Iaaue warrant of arrest on aaid
compl.8lnt4
c. Hold BxamMng trial there!&
d. Transfer the case to another magia-
trate within the county for exsminlng
trial to avoid serious inconvenience
and delay to the parties.
"2. Can asid city judge exercise the same
jurisdiction as a magistrate relating to
offenaea.which occurred ln the county
but outside the aLty limits?"
All statutory references contained In this opinion
are to Vernon's Code of Criminal Procedure.
Article 2.09 Includes city judges in the definition
of magistrates. Article 2.10 declares that it shall be
the duty of all maglatratea 1.0issue all process intended
to aid In preventing and aulpreaaingcrime, and to cause
the arrest of all offenders.
Article 15.03 ia 2 authorizes a msgir',rateto issue
en any person shall make oath be-
a wa.rrantof arrest Itit
fore the magistrate that another has committed some offense
against the Laws of the State." Article 15.04 defines a
complaint to be an affidavit made before a magistrate or
-3462-
Ronorable Carol S. Vance, pago 2 (c-718)
“,i;i;;zt or county attorney charging the commission of en
.
In view of the above articles, WC think it clear
thbt a city judge, in a caao which originated within his
city, may accept a complaint and issue a wrant of axreat
on a&Id complaint even though he would be unable to try
the case on its merits.
Ye have already seen
that a city judge is included
in the definition ot maglatratea
as set out In Article 2.09.
Article 2.U states that.when a magistrate alta for the
oae of inquiring into a criminal accusation, this la
vt3a a n lea lnl.ngc o ur t.
It is therofore the opinion
of this office thrt a qltyjudgr sitting as a mrgtatrate
may hold an examining trial even In a case overwhich he
haa no jurisdiction. to try on the merits.
It is our oplnloa that a cityjutlgerlttlag 88 a
magi&rate fn a cam8 which originated wlthin the city which
he cannot try on its merits may transfer the case to mother
magistratewithin the county for an examwing trial to
avoid lerioua~Inconvenienceand deley to the parties.
Ye do not believe that.the limitationswith regkrd to the
trenafer of cases as set out in Articles 4.16 and 4.12,
apply to msgiatrateawhen aittl,ngas en examining court.
In.&nnln~ v. State,281 S.U.21)’903, (Tex. Crlm. 1955) it
was held that Article 4.16, (then Article 64) did not
apply to a Justice of the Peace In a case where the Justice
had no jurisdictionto try the case on the merits.
The general rule on preliminary trial transfers as
stated at 22, Cq)aaa Juria Secundum, Criminal Y.&w,Section
239 is aq follows:
“Where serious inconveniencesnd delay
would ens-, either to the pubUc or to
the prisoner, by taking him before the
judge or the justice who has issued the
warrant, he may be taken before some other
justice in the 86me county,and In such
a casea new complaint and warrant are
not required.’
It la our opinion, therefore, th a t l ctty judge, under
the circumstancesset out In the first question, may trus-
for the caac to enother magistrate within tha county for
8x- trial to avoid lerloua Inconvenienceand delay
-3463-
Honorable Carol S. Vance, page 3' (c-718)
to the parties.
You next ask whether ornot a city judge can exercise
the same jurisdictionas a magistrate relating to offenses
which occurred in the county where he la located but out-
side the Incorporated,city limits for which he is city
judge. As previously pointed out, a city judge is a magla-
trate; therefore the question is really not whether the
city judge can exercise the same jurladlctlonas a,magia-
trate but rather whether a city judge acting as a magistrate
has county wide jurisdictionwith regard to the questions
you rrlad. We know of no case directly in point but
do note that in the case of Hart v. Stats 15 w..Cnm.
App. 202 (1883) at page 226 the Court, while speaking of
:JuatIceaof.the Peace aa magistrates, states as follow.8:
'With regmd to the &al trial of causes
coming with&n hIa jurisdiction,whether
cl-1 or crlmlaal, the statute evidently
contemplatesthat the action and juria-
diction of the juaflcela court shall be..
'limitedby awl to hi? precinct, unlea?
otherwLa~~expreaalyauthorized by the law
la certadg exceptional cases. But he la
furthermore a 'nbglatrate',made 80~by
term8 of the statute equally with judges
of the Supraae Court, Court of Appeals,
dlrtrict and county judges (Code CrIm.
Proc., Art. 42), and 'when a magistrate
, sits for the purpose of lnquirlng Into a
criminal accuratlon against any person,
this Is called an:'e.x.+mInlng~court'.'
(code CrIm. Proc., -Art.,63). At such time
he is a lmaglatrateland not a *justice
of the peice.' and his court is an 'e%-
amlnlngt and not a Ijuatice'a~court'. A
warrant OS arrest may be Iaaued.by a judge
of the SupYeme Court, .Courtof Appeals,
District or County Court, shall extend to
every part of the Stste (Code.Crim.Proc.,
Art.237; but, when Issued by any other
ma$Lrtra i e 1% cannot be executed In any
other County,except In certain instances
mentioned. (Code Grim. proc., Art. 238 .
It m&y, however, be issued to md execuled
anywhere In his co\intyoutside of as well
as In his own precinct. When sitting as
-an ~examlningcourt.' tlha law nowhere
limits the magistrate, if he be a justice
-3464-
Honorable Carol S. Vance, page 4 . (C-718)
to hIa particular precinct; and, not being
limited In this regard, there Is no reason
why it was not intended that he should
hold the court in any portion of the county
moat convenient for the purposes of the ex-
amlnatlon as to the conunltmentor discharge
of the accused (Code Crlm. Proc., Chap. III),
whether the place of the sitting be In the
precinct of another justice, competutitand
qualified to act, or not.*
Tt la our opinion, therefore, that a city judge sitting
as a maglatrate, may accept a complaint, issue a warrant
of arrest on said complaint, hold examining trials, and/or
transfer the case to another magistrate within the county
for the purposes of an examining trial with regard to any
offense comml~ted within the county in which he Is located.
SUYYARY.
-------
A city judge ~lttlng aa a msgiatrate has juriq-
.dictlonto accept complalata on case8 which he
cum& try on the merlt8, laaue warrant8 of.arrert'
thereon* hold tbxaWUg trI@la,aad transfer case8
to other magistrates in the county for.purposer
OfholdIng exalnbg trials, la all cases which
Eatzcurred within the county in which he 18
.
Yours very truly,
WAGGO= CARR
Attorney General of,Texaa
APPROVEDI
OPIWION COMMITTEE:
w. 0. Shulte, Chairman
Robert Owen
Oilbert Pena'
John Reeves
Phllllp Crawford
APPROVED mR THE ATMRNEY GENERAL:
BY: T. 8. Wright
-346th