Hon. Jean Day Opinion No. O-,+11
County Attorney Re: Filing of criminal cases in
Henderson County various justice precincts of county
Athens, Texas by constable, and related matters.
Dear Sir:
Your request for opinion has been received and care-
fully considered by this department. We quote from your re-
quest as follows:
“Would you please advise me on the follow-
ing :
‘Constable of ?recinct #8 catches dice shoot-
ers in Precinct $4 and files complaintagainst them
in Justice precinct 21 where they plead guilt ;.< and
pay fine. Justice of the Peace of ?recinct ii de-
mands the Justice fees in the cases. Should he re-
ce ive them.
“What is then present law on where a Constable
can f lie his cases.”
Articles 6885 and 6889, Vernon’s Annotated Texas
Civil Statutes, provide:
“Art. 6885. Each constable shall execute and
return according to law all process, warrants and
precepts to him directed and delivered by any law-
ful officer, attend upon all justice courts held
In his precinct and perform all such other duties
as may be required of him by law. I’
“Art. 6889. Every constable may execute any
process, civil or criminal, throughout his county
and elsewhere, as may be provided for in the Code
of Criminal Procedure, or other law.”
The constable is a peace officer. See Article 36,
Vernon’s Annotated Texas Code of Criminal Procedure.
Article 37 Vernon’s Annotated Texas Code of Crlmi-
nal Procedure, provides that “It is the duty of every peace
Hon. $ean Day, page 2
officer to preserve the peace within his jurisdiction.”
“Article 632, Vernon’s Annotated Texas ?enal Code, re-
ferring to violations of the gaming laws, reads as follows:
UWhenever It comes to the knowledge of any
sheriff, or other peace officer, by affidavit of
a reputable citizen, or otherwise, that any provi-
sion of the preceding articles of this chapter is
being violated, such officer shall immediately
avail himself of all lawful means to suppress such
violation; and he shall be authorized, by any
search warrant that is Issued by virtue of this laid,
to enter any house, room or place to be searched,
using such force as may be necessary to accomplish
such purpose .I’
Article 633, Vernon’s Annotated Texas Penal. Code 9 pro-
vides for the issuance of a search warrant and arrest warrant
for gaming violations.
Article 223, Vernon’s Annotated Texas Code of Crimi-
nal Procedure, relates to a “Warrant of arrest” and provides
that such a warrant:
“Issued by any county or district clerk, or
by any magistrate (except county commissioners or
commissioners court, mayors or recorders of an
incorporated city or town), shall extend to any
part of the state; and any peace officer to whom
said warrant is directed or into whose hands the
same has been transferre d shall be authorized to
execute the same in any c&nty in the state.”
The case of Henson v. State, 49 s.W. (2d) 4630 holds
that Article 223, V.A.T.C.C.P., authorizing the sheriff to serve
warrants outside his county does not extend his authority to
arrest without a warrant outside the county, and that a sheriff
and deputy making an arrest and searching an automobile outside
the county without a warrant stand in the same relation to search
as private citizens.
Opinion No. O-1240 of this department holds that a con-
stable has the authority to execute a warrant of arrest not only
in every precinct within his own county, but as well in any
county in the State, and is entitled to the fees and mileage pro-
vided by law therefor.
We quote from 38 Tex. Jur., ‘p. 434:
Hon. Jean Day, page 3
"The power of arrest possessed by a constable
and a city marshal1 also extends to the whole coun-
ty, and beyond when acting under a lawful warrant,
since they are peace officers." (Citing the case
of Newburn v. Durham, 31 S.W. 1951
This department has repeatedly held that a constable
has authority to make arrests without warrant (in the instances
provided by law) anywhere In his county either in or outside
his own precinct. See the following opinions:
Opinion dated May 21, 1931, wrltten by Hon. E. F.
Johnson, Assistant Attorney General, addressed to Hon. H. G.
Bennett, County Attorney, Dumas, Texas.
Opinion dated October 13, 1938, written by Hon. R. E.
Gray, Assistant A ttorney General, addressed to Sheriff Tom
Abel, Lubbock, Texas.
Opinion No. o-1565 of this department, dated Novem-
ber 24, 1939.
Opinion No. 0-3969 of this department, dated October
1, 1941.
k'e quote from Opinion No. 0-3969 of this department
as follows:
@'You are respectfully advised that it is the
opinion of this department that a constable may law-
fully make an arrest in a precinct other than his
own in his county without a warrant when he would
be authorized by law to make the arrest without war-
rant in his own precinct; and that while it is his
primary duty under Article 37, V.A.T.C.C.P. to pre-
serve the peace within his own precinct, st i 11 his
jurisdiction is co-extensive with the limits of the
county. It also follows that the constable would
have authority to execute warrants of arrest any-
where In his county.
"It Is also our opinion that the constable
would have authority to file complaints upon the
arrests described in your letter in the justice
court of the precinct where the offenses were COW
mitted.
"It is our further opinion that the c~onstable
may execute warrants of arrest anywhere within the
State."
* 7~
Hon. Jean Day, page 4
Me quote from the opinion of the Te:ias Court of Grim-
lnal Appeals In the case of Ex parte Von Koennerlts, 286 3.W.
987, as follows:
“This Is a dual actloll, in whlzh the applicant
seeks the writ of habeas corpus releasing him from
-rre st and also seeks a writ 01. prohibition against
J. C. &rch, justice of the peace of precinct No. 6
of Travis county, Tex. He asks that we Issue a writ
of prohibition prohibiting the said J. C. &rch,
ju:.tice of the peace as aforesaid from trying him
on a certain complaint which has been filed against
him in the justice court over which tha said Burch
pre sides. He attaches a copy of the complaint un-
der which he is held, and this complaint alleges
that on the 15th day of January, 1920, the appli.cant,
in Travis county, Tex., did unla&ully end iJillfully
drive and operate a certain motor vehicle along ‘:~nd
upon a certr;iin public highway, to wit, ::long and
upon 5outh Congress avenue, a street within the cor-
porate limits of Austin, TeX., an lncsyporated city,
at a greater rate of speed than 25 mills per hour,
etc.
“It is appellant’s contentton that the justice
of the peace in precinct NC. 6 is withot? jurisdic-
tion to try said case, In view of the :‘i:ct, as appei-
lant contends, that the offense was con,iiltted, if at
all, In precinct No. 3 in Travis county. :1e do not
agree with applicant’s contention that the alleged
anticipated trial of the applicant before the justice
court of precinct No. 6 would be a mere nullity. His
action in the event of a trial, in our judgment,
would not be void. Under the plain terms of the stat-
ute itself, the justice of precinct No. 6 has juris-
diction of the subject-maeter of the suit. Article
60, 1925 Revision CL.?.
“If it be conceded that applicant would have the
right upon proper motion to have the case transferred
to the justice precinct in which the alleged offense
occurred, which question it is unnecessary to dacide
in this case, it would still follow that such right
would not render the trial of the cause in justice
precinct No. 6 void. Suppose tha right to be tried
in the urecinct where the offense was committed was
undisputed, yet for some reason applicant should not
see fit to assert this right and should plead guilty
in a justice court situated in a precinct different
from the one ,in which the offense was committed; could
it be contended that a valid judgment could not be
rendered ag.ainst him under these conditions? ivi think
not. The Court cf Civil Appeals in this state haz, ~5
think, correctly stated ;he rule as follotis:
1 Hon. Jean Day, page 5
“‘The word “void!’ can with AO propriety be
applied to a thing which appears to be sound, and :,
which while in existence can command and enforce
respect, and whose. Infirmity. cannot be made .mani-
fest. If a judgment rendered without in fact.
bringing the defendants into court cannot be attack-
ed collaterally~on this ground unless the want of
authority over them appears on the record, it is no
more void than if it were founded upon a mere mis-
conception of some matter of law or of fact occur-
ring in the exercise of an unquestionable jurisdic-~
tion. In either case the judgment can be avoided
and made fun&&s officio by some appropriate pro-
ceeding instituted for that purpose; but If not so
avoided, must be respected and enforced. 1 Dunnv.
Taylor, 42 Tex.Clv.App.~ 241, 94 S.;.;‘. 347.
“The anticipated action of the justice of the
peace of precinct No. 6 being in no event more than
voidable, applicant is not entitled~to the relief
sought.
“(The doctrine is well settled, in this state
at least, that if the proceeding under which a. per-
son is held in custody and restrained of his lib-
erty is merely voidable, he cannot be released on
habeas corpus, but must seek his remedy in some other
manner. The ordinary mode of seeking redress against
a voidable judgment in a criminal proceeding would
be by appeal. The ,wrlt of habeas corpus was never
designed to operate as a writ of error, a certiorari,
or as an appeal.’ Ex parts ~Doland 11 Tex. App. 159;
Ex parte McKay 82 Tex.Cr.Ri 221 199 S.Y. 6370 Ex
part0 Japan, 38 Tex.Cr.R. 482 38 S.W. 43, and?many.
other cases ‘cited in these aut horlties. _, .~
“The matter in controversy being one in which
the justice of the peace has jurisdiction of the
subject-matter involved, owe will notdecide ,questions
of practice in an action of this character that, Mayo
arise on the trial of the case. As stated b Judge
Henderson in Ex parte Windsor (Tex.Cr.App.)7 r3 S.W.
90:
“‘We will not assume that the court below will”
not properly administer the law, and will not.-deter-
mine questions presented to it, in a legal and proper
manner.’ _:
Don. Jean BY, page 6
“.vor the reasons above stated the writ of
hapu;,‘d;trpus and the writ of prohfbltlon are both
Article 1052, Vernon’s Annotated Texas Code of Crim-
inal Procedure, re.ads as follows:
“Three Dollars lihal.1 be paid by the county to
the County Judge, or Judge of the Court at Law
and Two Dollars and fifty cents shall be paid gy
the county to the Justice of the Peace, for each
criminal action tried and finally disposed of be-
fore him. rovided, however that in all counties
having a population of 20,OOb or less, the Justice
of the Peace shall receive a trial fee of Three Dol-
lars. :juch Judge or Justice shall present to the
Commissioners’ Court of MS county at a regular
term thereof, a written account specifying each
criminal action in which he claims such fee, certl-
fied by such Judge or Justice to be correct, and
fllsd with the County Clerk. The Commissioners’
Court shall approve such account for such amount
as they find to be correct and order a draft to
be issued upon the County sreasurer in favor of
such Judge or Justice for the amount so approved.
i‘rovided the Commissioners~ Court shall not pay any
account or trial fees in any case tried and in which
an acquittal is had unless the State of Texas was
represented in the trial of said cause by the COW+
ty Attorney or his assistant Criminal District At-
torney or d s assistant, and t he certificate of said
Attorney is attached to said account certifying to
the fact that said cause was tried, and the State
of Texas,was represented and that In his judgment
there was sufficient evlAence in said cause to de-
mand 8 trial. of same. (As amended Acts 1929 41st
Leg. p. 239 ch. 104 1 1. Acts 1929, 41st tee.,
1st 6. S., p! 155, ch! 55,’ i 1.)”
Article 1011, Vernon’s Annotated Texas Code of Crimi-
nal procedure, reads as follows:
“No item of costs shall be taxed for a purport-
ed service which was not performed or for a service
for which no fee is expressly provided by law.”
Under the facts stated the dice shooters pleaded guilty
In Justice Precinct No. 1 end paid their fines. Under Ex part0
Von Koenneritz above cited such judgments are not void for such
. -
. Hon. Jean Day, page 7
justice court had jurisdiction. The Justice of the Peace of
?recinct No. 1 who accepted the pleas of guilt is entitled to
the fees provided by Article 1052, V.A.C.C.P., supra.
The Justice of the Peace of ?recinct No. 4~ not hav-
ing tried the cases, is not entitled to any fees whatever.
With respect to your question as to where the con-
stable can file his cases such question Is rather broad. As
pointed out above, under c he facts given in your letter, the
convictions in justice precinct No. 1 were not void. The de-
fendants pleaded guilty, paid their fines and did not file mo-
tions to transfer their cases to justice precinct No. 4. As to
whether such motions to transfer would have been good If made
is a question raised in the Ex parte Von Koennerits case but
not decided in such case. The constable also could have filed
the gaming cases directly in the county court as that court
had concurrent jurisdiction with the justice court of said of-
fenses. (See A rticle V, Section 15, Constitution of Texas.)
In this connection we wish to call to your attention
the provisions of House Bill 342 of the 48th Legislature of
Texas, effective August 10, 1943. We quote from Volume 5, Ver-
non’s 1943 Texas Session Law Service, 48th Legislature, Regular
Session, pages 424-425, as follows:
“Be it enacted by the Legislature of the State of
Texas:
“Section 1. No person shall be tried In any
misdemeanor case in any Justice Precinct Court ex-
cept in the precinct in which the offense was com-
mitted, or in which the defendant resides; provided
that in any misdemeanor case in which the offense
was committed in a precinct where there is no quali-
fied Justice Precinct Court, then trial shall be had
in the next adjacent precinct in the same county
which may have a duly qualified Justice Precinct
Court, or in the precinct in which the defendant
may reside; provided that in any such misdemeanor
case upon disqualification for any reason of all
Justices of the Peace in the precinct where the of-
fense was committed, such case may be tried in the
next adjoining precinct in the same county, having
a duly qualified Justice of the Peace; provided
that, upon agreement between the attorney repre-
senting the State and each defendant or his attor-
ney, which said agreement shall be reduced to writ-
ing, signed by said attorney representing the State
Hon. Jean Day, page 8
and each defendant or his attorney, and flled in
the Justice Court in which such alsdemeanor case
is pending the Justice of the Peace before whom
such case 1 s pending may In KS discretion,
transfer such cause to t he Justice Court of any
other precinct in the same county named in such
agreement; provided that In any m!sdemeanor case
in the Justice Court, In which two (2) or more de-
fendants are to be tried jointly, such case may be
tried in a Justice Court of the precinct where the
offense was committed, or where any of the defend-
ants reside.
“Sec. 1-A. No constable shall be allowed a
fee in any misdemeanor case arising In any precinct
other than the one for which he has been elected or
appointed, except through an order duly entered upon
the Minutes of the County Commissioners Court.
“Sec. 1-B. Any Justice of the Peace, Constable,
Deputy Constable, Sheriff or Deputy sheriff either
elected or appointed, vlo 1.atlng any provision of
this Act shall be punished by fine of not less than
Gne Hundred Dollars ($100) nor more than Five Hun-
dred Dollars ($500) .aod shall be subject to be re-
moved from office by action brought in District Court
for that purpose.
“Sec. 2. All laws and parts of laws in conflict
herewith are hereby repealed to the extent of such
conflict.
“Sec. 3. The fact that many persons are dally
being prosecuted for misdemeanors in Justice Courts
at considerable distances from their homes and from
the precincts in which the offenses were committed, .
for the purpose of inducing such persons to plead
guilty, creates an emergency and awlmperative pub-
lic necessity that the Constitutional Rule requiring
bills to be read on three several days ineach House
be suspended and said Rule is hereby suspended, and
this Act sha 11 take effect and be In force from and
after its passage, and it is so enacted.
“Passed the House, April 7 19438 Yeas 125,
Nays 18; passed the Senate, Aprfl 29, 1943, by a viva
vote vote.
“Approved May 6, 1943.
. ., -
Hon. Jean Day, page 9
‘%ffective 90 days after May 11, 1943, date
of adjournment .‘I
When House Bill No. 342, supra becomes effective
on August 10, 1943 it will control lnso i ar as the filing of
misdemeanor compla&ts In ~justlce courts are concerned.
Trusting that this satisfactorily answers your ln-
qulries, we ape
Very truly yours
ATTORNZYGHNFRALOF TEXAS
By /s/ Wm. J. Fanning
Wm. J. Fanning, Assistant
APPROVEDJIJL1, 1943
/s/ ‘Jim. J. Fanning
(Acting) ATTCRNZYGENERAT.
OF TEXAS
APPROVZD:OPINIONCOMMITTZ
BY: Bii, CHAIRMAN
WJF: db:wb