                      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
