OFFICE OF THE ATTORNEY GENERAL OF TEXAS
hUBTIN
-a.-
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Honorable Edgar A. Maddox
County Attorney
Palo Pinto County
Palo Pinto, Texaa
Dear 31x-r Opinion Iio.o-3970
Rer (1) Is it lavful an4 proper
for a justice of the peace
sitting a8 a coPm1telng
magistrate to accept com-
plaint and lsaue 6 warrant
of armat for an offense
that 1s vlthln the juriw
diCtAOn of the oounty court
of the county?
(2) Should not the complaint
issued by a justice of the
peace in the above rituatlon
be fllod upon his examining
trial docket and then trsa-
mltted to the Countg Clerk
after examining trial is had
or valverl?
¶‘hls is to acknovledge your latter requesting our
opinion upon the questlone stat& above.
,In examining the authorities relative to the first
question, we find the follovl~ statement by Judge Brooks of
ths Court of CrimLnal Appeals in the case of Llndley vs. State,
57 Tex. Cr. R. 346, 123 3. U. 1411
“Ue find but one bill of exception ln the
record, vhloh complains that the affidavit in
this case, upon vhlch the lnformatlon VBE filed,
Honorable Edgar A. Maddox, Page 2
was taken before the justice of the.peaoe for
precinct lo. 1, and delivered to the county
attorney, end the county attorney flied an
information on it. This is clearly author-
imd by the laws of this state.”
The Llndley case WRB followed in the cast of Duncan
vs. Stat/s, 132 Tex. .Cr. R. 612, 279 S. V. 4,jY’. Sea also, Gentry
ve. State, 62 Tex. Cr. R. 497, 137 5. W. 696.
From a reading of the above cited casts it 1s clear
that it la lawful and proper for a juatlce of the peace to ac-
cept a complaint for en offense that 1s wlthln the jurisdiction
of the county court. See Article 415, Code of Criminal Procedure.
Upon acceptance of the complaint, It is the duty of the
magistrate to issue a warrant for the arrest of the accused. See
Article 223, Code of Crlmlnal Procedure. Your first question 1s
therefore answered in the afflrmatlve.
The wnrrant of arrest is executed, as provl4ed by Ar-
ticle 333, Code of Criminal Procedure, by the offlccr or other
person to uhom lt 1s directed, taking the person charged forth-
with ‘before the maglntrate who issued the warrant, or before
the magistrate ncmed ln the varre.nt.” Article 245, Code of Crlm-
inal ProceBure, reads as follows%
%hon the accused has been brought before
a lnnglstrate, that officer shall proceed to
oxamlne into the truth of the accusation mndc,
allowing the accusetf, however, sufflolont tlnc
to procure counsel.
The accused may waive the examination allude4 to in
the above statute. If he does waive, the ma&lstrnte should
require a proper bond and transmit the complaint to the county
attorney, who ahould prepare and fllc an information based upon
the complalnt. Both the complaint and lnformatlon shvuld be
filed in the county court. If, upon the examfnation the megls-
trate is satleflcd from the evidence that St is probable that
the accused is guilty of an offense of which the county court
has jurisdiction, it 1s the duty of the justice of the peace to
send the whole case to the county court, even though the com-
plaint contnirs some counts ot’ whi.ch the justice court would have
jurlndlctlon. See the oane of Rx parte Holcomb, 63 Tex. Cr. R.
204, 131 S. w. 634, where a writ of habeas corpus was sought on
Honorable Edgar A. Maddox, Page 3
the iround that the county oourt had no jurlrdlotlon of the
oaao, filed originally :n the jurtloe 0ourt;and vhioh vaa
transferred to the county court following an examining trial.
The Court of Criminal Appeal8 hold the relator entitled to
no relisf, saying the above prooedure u&s propor.
The oass of Wronn VB. State, 82 Tex. Cr. R. 642,
200 S. Ii! 844, approves the prooedure of the justloe of the
psaoe aoceptlng a complaint and making the varrant of arrest
rsturnable to the county oourt. In that oaao the sheriff made
the affidavit on a Sunday, the Oomplaint oharglng the defend-
ant vlth gaming. The justice of the peats transmitted ths oom-
plaint to tha county court the next day, and on said date (Mon-
day) the oounty attorney fllod hia information, based upon the
complaint sworn to before the jurtioe of ths peace; appeal vas
perfected from the judgment of the county oourt, but the ap-
pellate court held there vas no error, approving the procedure
followed in the lowsr oourts.
In tmow4r to your second queatlon it la our opinion
that the justice of the peaob, when sitting aa a maglatrato to
hold an axamlning trinl, should file the complaint, issue the
varrant and other prooom, and note the aHme upon his examin-
lng trial dookct. Upon waiver by the aocused, or detormlna-
tlon by the juatloo of the peaoe that accused should be held
to answer to the oounty Court, all papers in the case should
be forthvith foxwarded to the oounty clerk for proper notion
in the premises. The county attorney should then prapare his
informatlon$ lf the justice court complaint is otharvise In
propsr form, the cam lr then rsady for trial in the county
court. A POV complaint Is unnocosaary nnd the defendant is
bound to appear upon his bond made in response to the order
of the justice court binding him to the county court.
Trusting the above fully ansvera your inqulrlea, w4
ar4
Yours very truly
. : ,~’
:A:;;
: “‘Zkh4L Benjamin Woodall
Assistant
BUrR3
COMMI’ITEL