                       The Attorney General of Texas
                                        November 15,      1979
MARK WHITE
Attorney General


                   Honorable Maurice S. Pipkin               Opinion No.   MW-8 4
                   Executive Director
                   State Commission on Judicial Conduct      Re: Mwt a complaint arising out
                   120 Supreme Court Bldg.                   of   information discovered on
                   Austin, Texas 787R                        execution of a search warrant be
                                                             filed with the court which issued
                                                             the warrant?

                   Dear Mr. Pipkim

                          You request an interpretation of certain provisions of chapter 18 of the
                   Code of Criminal Procedure, which relates to search warrants. When a
                   justice of the peace, sitting as a magistrate, issues a search warrant
                    returnable to him, may he require that any subsequent complaint alleging an
                   offense discovered through the search be filed with him?

                         A search warrant is a written order issued by a magistrate
                   commandii a peace officer to seize property and bring it before him. Code
                   Crim. Proc. art. 18.OL In addition, the officer must arrest and take before
                   the magistrate any person he is directed to arrest by the warrant. Code
                   Crim. Proc. art. 18.09. The magistrate, upon the return of a search
                   warrant, shall try the questions arisii upon it, Code Crim. Proe. art. 18.12,
                   and if satisfied that there was a gcod ground for issuing the warrant, he shall
                   deal with the accused as in other cases before an examining court, Code
                   Crim. Proc. art. 18.14. He shall deliver the record of proceedings before him
                   to the court havingjurisdiction of the case. Code Crhn. Proc. art. 18.15.

                         These provisions state that the warrant shall be returned to the issuing
                   magistrate and that the initial proceedings shall be held in his court. In
                   order for the justice of the peace to conduct an examining trial as a
                   magistrate, a complaint must have been filed. Ma es v. State, 17 S.W.2d 59
                   (Tex. Crim. App. 1929); Brown v. State, R8 SW. -+----
                                                                     139 Tex. Cram. App. 1909);
                   Attorney General Opinion H-1294 Q978); see Code Crim. Proc. arts. 15.04,
                   15.05, 18.14,45.01, 45.16, 45.17. The affidavit in support of an arrest made
                   before the magistrate is a complaint if it charges the commission of an
                   offense.    Cede Wm. Roe. art. 15.04; see Code Crim. Proc. art. 15.05
                   (requisites of complaint). If a search warrant issued by the justice of the
                   peace also orders an arrest, the affidavit in support may constitute a
                   complaint. -See Code Crim. Proc. art. 18.03.
Honorable Maurice S. Pipkin   -   Page Two        (MW-84 1




       Where no complaint k made until after the search warrant 19issued, we believe the
officer who executes the warrant need not file the complaint with the issuing magistrate.
The provisions of chapter 18 presume that the examining trial will be held before the
issuing magistrate, but they nowhere requira that the complaint be filed with him. The
justice of the peace retains jurkdiction only when the complaint k filed in his court.
 Code Crim. Proc. art 4.16. We do not believe that failure to file the complaint with the
magistrate who issued the search warrant will impair the jurisdiction of the court which
does accept the complaint and conduct the examining trial.

                                     SUMMARY

           When a justice of the peace, sittix as a magistrate, issues a search
           warrant returnable to him, the complaint alleging an offense
           discovered through the search need not be filed with him.




                                             MARK     WHITE
                                             Attorney General of Texas

JOHN W. PAINTER, JR.
Fimt Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by SusanGarrison
Assistant Attorney General

APPROVED:
OPINIONCOMMITTEE

C. Robert Heath
David B. Brooks
Tom Bullington
Charles Campbell
Bob Gammage
Susan Garrison
William G Reid




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