HE Y GE AL
OFTEXA~
The Honorable Melvin D. Whitaker Opinion No. H- 135
District Attorney
606 Crawford Street Re: Authority of a district
Palestine, Texas 75801 attorney in a criminal
case transferred to his
district after indictment
Dear Mr. Whitaker: in another district
You have asked whether you, as district attorney for the 173rd
Judicial District, may try a criminal case which, after indictment, has
been transferred to that court from the Third Judicial District Court.
The Third and 173rd Judicial Districts have identical boundaries, but
the 173rd District Court has never empaneled a grand jury. Therefore,
all indictments in Anderson, Henderson and Houston counties have been
returned to the Third District Court.
The transfer of a case from one court to another is clearly autho-
rized in Article 199a, V. T. C. S., $ 2.002(a), which provides:
“In any county in which there are two or more
district courts, the judges of such courts may, in
their discretion, either in term-time or in vacation,
on motion of any party or on agreement of the parties,
or on their own motion, transfer any case or proceeding,
civil or criminal, on their dockets to the docket of one
of the other said district courts; and the judges of the
courts may, in their discretion, exchange benches~or
districts from time to time. ”
The transfer procedures have been repeatedly upheld. Garcia v. State, 429
S. W. 2d 468 (Tex. Grim. 1968); Ehrlich V. State, 281 S. W. 548 (Tex. Crim.
1926); Littleton V. State, 239 S. W. 202 (Tex. Grim. 1922); Cummings V. State,
35 S. W. 979 (Tex.Crim.1896); Moore v. State, 35 S. W. 668 (Tex. Crim.1896).
p. 648
The Honorable Melvin D. Wbitaker, page 2 (H-135)
When the case is transferred, it is a case in the transferee court,
and it is the duty of the district attorney of the district which received
the case to represent the State. Artic:le 2.01, Vernon’s Texas Code of
Criminal Prodecure; and see Acts 1973, 63rd Leg., ch. 442, p- 1228,
creating the office of District A,ttorney of the 173rd Judicial District.
We know of no constitutiona:l limitation which would require a dif-
ferent result.
SUMMARY
It is the duty of the District Attorney for the
173rd Judicial District to prosecute a criminal case
transferred to that court from the Third Judicial
District Court in which the indictment was returned.
Very truly yours,
Attorney General of Texas
n
DAVID M. KENDALL, Chairman
Opinion Committee
p. 649