Untitled Texas Attorney General Opinion

November 18, 1949 Hon. Homer L. Moss Opinion NO. v-946. County Attorney Wheeler County Re: The legality of filing Wheeler, Texas a compiainton a mis-- demeanor of county court grade in a jus- tice court, requiring ball there pending ap- pearance before the Dear Mr. Moss: county court. Your request for an opinion is substantially as follows: "The town of Shamrock with estimated popula- tion of some four thousand, is the most pop- ulous village in Wheeler County. Quite a few arrests are made weekly by Highway Patrolmen and by some local officers of .vari.ous highway violationsdue to the fact that U. S. Klghwag No. 66 from Chicago to the West Coast runs through the city named. The county seat is ate Wheeler, a small town some eighteen miles North of Shamrock and the highway named. Of- ten these arrests are for the offense desig- nated or known as 'D.W.1.' or 'drunkdriving'. Such an offense Is liable to occur sometime on Saturday night or on the eve of a holiday. For obvious reasons the prisonersis In no condition to properly answer before any court or magistrate,but usually on the ~followlng morning he is free from intoxication. For quite a number of years the Justlce of the' Peace office has been open for most of Sunday and on the few occasions when not open the justice is accessible and will come to the office. The town of Wheeler, eighteenmiles away, is a typical rural county seat. Be- cause of various factors neither the county judge or county clerk nor deputies are regu- larly available on either a holldag or Sun- day. An officer bringing a prisoner to Hon. Homer L. Moss, page 2 (v-946) Wheeler on such days often experiences ex- treme delay in locating any of the officers named, not due to inattentionor in-efficien- cy but because of a combination of factors. "The county jell is at Wheeler but the pris- oner in such cases must remain Sunday and Sun- day night in the Shamrock City lock-up (used for county prisoners8s a temporary place of detention.) Sometimesbond is sought or at least complaintmade by the prisoner or his counsel to sufficientdegree to motivate this inquiry as to the rights applicable to the situation." QUESTION: May officers file a complaint with the Jus- tice of the Peace and could that officer re- quire bail of the prisoner to appear before the County Court In another town in the County? Article 802, V.P.C., Is as follows: "Any person who drives or operates an automobile or any other motor vehicle upon any publLc road or highway in this State, or upon any street or alley within the lim- its of an incorporatedcity, tovn or vll- law, while such person is intoxicated or under the Influenceof Intoxicatingliquor, shall be guilty of a q Lsdemeanor,and upon conviction, shall be punished by confine- ment in the County Jail for not less than ten (10) days ncr more than two (2) years, or bv a fine of not less than Fifty Dollars 50) nor more than Five Hundred Dollars ti500bj or by both such fine and lmprlaon- ment. Article 235, V.C.C.P., 1s as follows: *One arrestedfor a misdemeanor shall be taken before a magistrate of the county where the arrest takes place who shall take bail and transmit immediatelythe bond so taken to the court having jurisdictionof the offense." HOU. Homer L. MOSS, page 3 (v-946) Article 454, V.C.C.P., reads: "Any officer making an arrest under a capias in a misdemeanor may tn term time or vacation take bail of the defendant." In the case of Llndley v. State, 57 Tex.Crim. 346, 123 S.W.141 (1909), the court said: "We find but one bill of exception in th8 record, which complains that the affidavitIn this case, upon which the informationwas fil- ed, was taken befora the justice of the peace for precinctNo. 1, and delivered to the coun- ty attorney, and the county attorney filed an informationon it. This is clearly authorized by the laws of this state." ~1s.o see Ex Part8 Holcomb, 60 Tex.Crim.204, 131 s.W.604 (1910); Gentry v. State, Tex.Crim.497,137 s.w.696 (1911). In the case of Duncan v. State, 102 Tex.Cr%m. 612, 279 s.w.457 (1!925),be court sea: I'Thejurisdictionof the county court was questioned,because the complaint was sworn to before a justice of the peace, and because there was no transcript or certtifl- cate of any proceedinghad In the justice court. The record suggests nothlng more than that the complaint was sworn to before the justice of,the peace, and iniowation was filed thereon by the county attorney. Article 479, Vernon's C.C.P. (article415, 1925 Codification),provides that complaint may be sworn to by any officer authorized 'to administerthe oath. Lindlep v. State, 58 Tex.Cr.R.346, 123 s.U.141; Gentry v. State, 62 Tex.Cr.R.497,137 s.x.696.". In view of the foregoing authoritiesand in view of the fact that the County Judge and County Clerk 3r8 Lnaccesslble,it is our opinion that the Justice of the Peace may accept the complaint in your factual sltu- ation, issue a warrant, and require bail. But all papers in the case should be forwardedto the County Clerk for proper action. Mor8over, the County Attorney should pre- pare an information,if the Justice Court Complaint is . .. f Hon. Homer L. Moss, page 4 (v-946) Otherwie8 in proper form, and proceed to trial In the County Court, said Court having jurisdictionof the of- fense of driving while intoxicated. SUMMARY A Justice of the Peace may accept a complaint and issue a warrant for driving while Fntoxlcatedwhere the County Attor- ney and County Clerk are inaCC8SSibl8,but all papers shall be forwarded to the Coun- ty Court for final dispositionof the case. Yours very truly, ATTORNEYGENERAL OF TEXAS JRF:bh:mw FIRST ASSISTANT ATTORNEY GENERAL