

Opinion issued
May 19, 2011

In
The
Court of
Appeals
For
The
First District
of Texas
————————————
NO.  01-10-00433-CR
———————————
Artemio Orlando Sanchez, Appellant
V.
State of Texas, Appellee

 

 
On Appeal from the County
Criminal Court at Law No. 3
Harris County, Texas

Trial Court Case No. 1588297
 

 
O P
I N I O N
 
          Artemio
Orlando Sanchez appeals his conviction for the misdemeanor offense of driving
while intoxicated.[1]  After the trial court denied a motion to
suppress evidence, Sanchez pleaded guilty. 
The trial court sentenced Sanchez to confinement in the county jail for
one year, probated for two years, and imposed a $700 fine.  In his sole issue, Sanchez contends that the
trial court erred by denying his motion to suppress evidence of the results of
his blood test because a search warrant may not be issued by a statutory county
court judge for execution in a different county.  We reverse and remand.
Background
          Shortly
after midnight on March 22, 2009, Officer Lucas of the Houston Police
Department was dispatched to a single vehicle accident on Scarsdale Road, in
Harris County.  When he arrived, he
observed a Ford Mustang with a heavily damaged front end.  Lucas spoke with the passenger who told him
that Sanchez had lost control of his vehicle and driven over a curb into a
retaining wall.  Sanchez confirmed he was
driving at the time of the accident. 
Officer Lucas noticed a strong odor of alcohol on Sanchez as well as bloodshot
eyes, slurred speech, and poor balance.
          Lucas
contacted Officer Fitts to assist in the investigation.  Fitts also observed that Sanchez had
bloodshot eyes, slurred speech, and poor balance.  When Fitts asked Sanchez if he had been
drinking, Sanchez replied that he had had a couple of beers.  Fitts began performing field sobriety tests
on Sanchez, including the horizontal gaze nystagmus (HGN) test, the walk and
turn test, and the one leg stand test. 
Sanchez refused to cooperate during the HGN test and exhibited several
clues of intoxication during the other two tests.  Fitts concluded that Sanchez was intoxicated
and arrested him.  After transporting
Sanchez to “central intox,” Fitts asked if he would provide a sample of his
breath.  Sanchez declined. 
          Because
Sanchez had refused the breath test, Fitts sought a search warrant for Sanchez’s
blood.  The warrant was signed by the
judge of the County Court at Law Number 5 of Montgomery County.  Sanchez’s blood was drawn revealing a blood
alcohol concentration of 0.163, over twice the limit of per se intoxication.
          Sanchez
was charged with driving while intoxicated. 
Sanchez filed a motion to suppress the evidence of the blood test
results.  The trial court denied the
motion, and Sanchez pleaded guilty with an agreed recommendation on
punishment.  The trial court sentenced Sanchez
to one year in the county jail, probated for two years, and fined him $700.  Sanchez filed a notice of appeal and the
trial court certified his right to appeal the matters raised in the motion to
suppress evidence.
Applicable Law
          This case presents a novel question of
law: May the judge of a statutory county court, acting as a magistrate, sign a
search warrant to be executed in a county other than the county in which the
judge serves?  In his sole issue
on appeal, Sanchez contends that the trial court erred by denying his motion to
suppress because the statutory county court judge in Montgomery County did not
have jurisdiction to sign a search warrant for evidence located in Harris County.  As discussed below, a district court judge
acting as a magistrate has authority to sign a warrant to be executed outside
the county in which the judge was elected, but a justice of the peace acting as
a magistrate does not have such authority. 
We must decide whether a judge of a statutory county court has such
authority.
1.       Standard of Review
          We review a trial court’s ruling on a motion
to suppress for abuse of discretion.  Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App.
2008).  We must view the evidence in the
light most favorable to the trial court’s ruling.  Id.  As such, we give “almost
total deference” to a trial court’s determination of historical facts.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.
2000).  We review de novo application of
the law of search and seizure.  Id. 
The facts in this case are undisputed and we are asked to decide a
question of law relating to search and seizure. 
Therefore, our review is de novo. 
See id.  
2.       Authority
to issue and execute search warrants
          A search warrant is defined, in
pertinent part, as “a written order, issued by a magistrate and directed to a peace
officer, commanding him to search for any property or thing and to seize the
same and bring it before such magistrate . . . .”  Tex.
Code Crim. Proc. Ann. art. 18.01 (West Supp. 2010).  Article 2.09 of the Code of Criminal
Procedure, entitled “Who Are Magistrates,” includes district court judges,
county judges, statutory county court judges, and justices of the peace, as
well as mayors and recorders and the judges of the municipal courts of
incorporated cities or towns.  Tex. Code
Crim. Proc. Ann.
art. 2.09 (West Supp. 2010).  Under article
2.10, which describes the “Duty of magistrates,” the statutory county court has
“the duty . . . to preserve the
peace within his jurisdiction by the use of all lawful means” and “to issue all
process intended to aid in preventing and suppressing crime.”  Tex. Code Crim. Proc. Ann. art. 2.10 (West 2005).  Although the Code of Criminal
Procedure requires a magistrate to preserve the peace “within his jurisdiction,”
it does not specify the jurisdiction for a magistrate.  See United
States v. Conine, 33 F.3d 467, 469 (5th Cir. 1994).  
          Regardless of the issuing authority,
search warrants must be executed by a
peace officer with jurisdiction in the locale searched.  See
Tex. Code Crim. Proc. Ann. art.
18.04(3) (West 2005) (requirements of search warrant include that it “command
any peace officer of the proper county
to search . . . .”) (emphasis added); see
also Keen v. State, 626 S.W.2d 309, 313 (Tex. Crim. App. 1981) (holding as
long as an officer with jurisdiction was present, search warrant was validly
executed, although some officers were acting outside of their jurisdiction); Rivera v. State, 730 S.W.2d 824, 826
(Tex. App.—Houston [14th Dist.] 1987, pet. ref’d), cert. denied, 485 U.S. 978, 108 S. Ct. 1272 (1988) (same).


 
3.       Authority
to issue and execute arrest warrants
          In
contrast to the provisions of chapter 18 of the Code of Criminal Procedure
governing search warrants, article 15.06 expressly provides that an arrest
warrant issued by “any magistrate” may be executed by “any peace officer” in “any
county.”[2]  Tex. Code Crim. Proc. Ann. art. 15.06 (West 2005).  This plain language has been
acknowledged by the courts.  See Christopher
v. State, 489 S.W.2d 575, 577 (Tex. Crim. App. 1973) (holding Menard County
sheriff acted lawfully when he executed arrest warrant in Tom Green County); O’Hara v. State, 837 S.W.2d 139, 146
(Tex. App.—Austin 1992, pet. ref’d) (arrest lawful when Garden City officer
executed arrest warrant in San Antonio).
4.       Authority of district court judges
          A judge of a district court, when
acting as a magistrate, may issue a search warrant that is valid and may be
executed throughout the State.  See Conine, 33 F.3d at 471; Green v. State, 880 S.W.2d 198, 201 (Tex. App.—Texarkana 1994, no pet.).  Both cases involved search warrants issued by
the judge of the 62nd Judicial District in Hopkins and Lamar counties, which
were executed in Red River County.  See Conine, 33 F.3d at 468; Green, 880 S.W.2d
at 201.  In each case, the defendant
challenged the validity of the warrant.
          The court of appeals in Green stated that “[t]he jurisdiction of
a justice of the peace when acting as a magistrate is limited to the county in
which the court sits [but] [w]e find no cases or statutes limiting a district
court to endorsing search warrants only within the counties covered by that
court’s judicial district.”  Green, 880 S.W.2d at 201.  The court continued, “The district court,
being a state court, has the jurisdiction provided by Article V, section 8 of
the Texas Constitution.”[3]  Id.  The court overruled the challenge without
further discussion.  Id.  Thus, under Green, a district court judge acting as
a magistrate has state-wide jurisdiction for issuing search warrants.   
          In Conine,
the Fifth Circuit agreed that a district court judge may issue a search warrant
for execution anywhere in Texas.  The
court began its analysis by examining the territorial jurisdiction of a
district judge because “[h]is territorial jurisdiction as a magistrate will at
least encompass that of a district judge.” 
Conine, 33 F.3d at 470.  This is because a district judge, when issuing a search
warrant, is acting as a magistrate, “by virtue of his office as a district
judge” and his “‘authority to act in the capacity of magistrate is dependent
upon his office.’”  Id. (citing Tex. Code Crim.
Proc. Ann. art. 2.09, State ex
rel. Holmes v. Salinas, 784 S.W.2d 421 (Tex. Crim. App. 1990) (orig.
proceeding), and State ex rel. Holmes v.
Salinas, 774 S.W.2d 421 (Tex. App.—Houston [14th Dist.] 1989, orig.
proceeding)). 
          Next, the court noted, that, although
Texas is divided into judicial districts, which are defined by county, a
district judge’s duties are not limited to the district over which the judge
presides.  Id. (citing Tex.
Const. art. V, § 7 and Tex. Gov’t Code §§ 24.101 et
seq.).  As an example, the court quoted
article 1.23 of the Code of Criminal Procedure: “All justices
of the Supreme Court, judges of the Court of Criminal Appeals, justices of the
Courts of Appeals and judges of the District Courts, shall, by virtue of their
offices, be conservators of the peace throughout the State.”  Tex. Code Crim. Proc. Ann. art. 1.23 (West 2005).  The court also noted
that “all district judges may exchange benches.”  Conine,
33 F.3d at 471; see Tex.
Const. art. V, § 11
(“District Judges may exchange districts, or hold courts for each other when
they may deem it expedient, and shall do so when required by law.”).  A district court may exchange benches without
any formal action or order, and the record or the docket sheet need not show
the reason for the exchange of benches.  Conine, 33 F.3d at 471 (citing, inter alia, Mata v. State, 669 S.W.2d 119 (Tex.
Crim. App. 1984) and Davila v. State,
651 S.W.2d 797 (Tex. Crim. App. 1983)); see
also Celestine v. Dep’t of Family & Protective Servs., 321 S.W.3d 222,
227 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (recognizing, in civil case,
authority for district courts to exchange benches) (citing In re U.S. Silica Co., 157 S.W.3d 434, 439 (Tex. 2005)).  Finally, the court also noted, “Neither the Texas Constitution, Texas
statutes, nor Texas jurisprudence limits a district judge when issuing a search
warrant to the judicial district he or she has been elected to serve.”  Id.

          The Fifth Circuit concluded, “District
judges are empowered, by the Texas Constitution, to function judicially
throughout the state.  District judges
are unique in that respect.”  Id. 
The court, “declin[ing] to read into a Texas law a limitation of a
district judge’s powers as a magistrate which does not expressly exist in its
positive law,” held that the 62nd Judicial District judge was authorized to
issue the search warrant for Red River County. 
Id.  
5.       Authority
of justices of the peace
          A
justice of the peace is a magistrate.  Tex. Code
Crim. Proc. Ann.
art.  2.09.  “[T]he jurisdiction of a justice of the
peace, when acting as a magistrate, is coextensive with the limits of his
county.”  Gilbert v. State, 493 S.W.2d 783, 784 (Tex. Crim. App. 1973); see also Ex parte Clear, 523 S.W.2d 224,
228 (Tex. Crim. App. 1978) (orig. proceeding) (same); Bitner v. State, 135 S.W.3d 906, 907 (Tex. App.—Fort Worth 2004,
pet. ref’d) (same).  “Coextensive” means “extending
over the same space or time; corresponding exactly in extent.”  The
New Oxford American Dictionary 331 (2001).  A justice of the peace does not have
jurisdiction to issue a search warrant for execution outside of the justice’s
county.[4]  See
Green, 880 S.W.2d at 201 (“The jurisdiction of a justice of the peace when
acting as a magistrate is limited to the county in which the court sits”).  This conclusion is bolstered by the
Legislature’s decision to expressly provide for the statewide validity of
arrest warrants when signed by any magistrate, except mayors of an incorporated city or town.  Tex. Code Crim. Proc. Ann. art. 15.06.  If there were no question concerning limits
to a magistrate’s geographical jurisdiction, such a provision would be unnecessary.  See Badgett v. State, 42 S.W.3d 136, 139
(Tex. Crim. App. 2001) (stating “the cardinal rules of statutory construction:
statutes are to be construed, if at all possible, so as to give effect to all
of its parts, and so that no part is to be construed as void or redundant”).  No such provision exists concerning search
warrants for a justice of the peace, or any other magistrate.
6.       Authority of statutory county court
judges
          We
begin by examining the jurisdiction of the statutory county courts.  Under the Texas Constitution, “The
judicial power of this State [is] vested in one Supreme Court, in one Court of
Criminal Appeals, in Courts of Appeals, in District Courts, in County
Courts, in Commissioners Courts, in Courts of Justices of
the Peace, and in such other courts as may be provided by law.”  Tex.
Const. art. V, § 1.  The
Texas Constitution also authorizes the legislature to “establish such other
courts as it may deem necessary and prescribe [their] jurisdiction . . . .” Id.  Texas courts that are listed in the
constitution are referred to as “constitutional courts”;
courts that are created by the Legislature under its power to create “other
courts” are referred to as “statutory courts.”  Clute
Apartments 1, Ltd. v. Lorson, No. 01-09-00514-CV,
2010 WL 5186913, at *2 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet.) (mem.
op.) (citing 1 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 3:3 (2d ed. 2004)).  A county court at law, such as the court at
issue here, is a “statutory county court.” 
See Tex. Gov’t Code Ann. § 21.009(2) (West 2004).
          Our constitution delegates to the
Legislature the determination of the
jurisdiction of statutory county courts. 
Tex. Const.
art. V, § 1.  In contrast, the Texas
Constitution grants district courts “exclusive, appellate,
and original jurisdiction of all actions, proceedings, and remedies, except in
cases where exclusive, appellate, or original jurisdiction may be conferred by
this Constitution or other law on some other court, tribunal, or administrative
body.”  Tex. Const. art. V, § 8.  Thus, district courts are courts of general
jurisdiction and are presumed to have subject-matter jurisdiction over all
claims unless a contrary showing is made. 
Dubai Petroleum Co. v. Kazi,
12 S.W.3d 71, 75 (Tex. 2000).  
          Section
25.003 of the Texas Government Code states that statutory county courts have
jurisdiction over all criminal proceedings prescribed by law for county
courts.  Tex. Gov’t Code Ann. § 25.003(a) (West Supp. 2010).  It has specific original jurisdiction over
certain criminal matters.  See Tex.
Gov’t Code Ann. § 26.045 (West Supp. 2010).  And this statutory county court has
concurrent jurisdiction with the district court over certain limited civil
matters in Montgomery County.  See Tex.
Gov’t Code Ann. § 25.1722(a) (West 2004).  But none of these provisions grant the
statutory county court jurisdiction to issue search warrants statewide.


 
Does a statutory county court judge
have the authority to issue a search warrant to be executed in a county other
than county of the judge’s court?
 
          The
State argues that the absence of any law expressly prohibiting a judge of a
statutory county court, acting as a magistrate, from issuing a search warrant
to be executed in a different county supports the conclusion that a statutory
county court judge has such authority.  Cf. Green, 880 S.W.2d at 201 (noting absence of
any limit on authority of district court); Conine, 33 F.3d at 470 (same).  
          We
believe that the absence of a limitation is not, however, the critical inquiry.  The issue is whether the Legislature has
granted such authority to the statutory county courts because
statutory county courts only have the jurisdiction that the Legislature
confers.  Tex. Const. art. V, § 1.  No provision granted such authority at the
time in question.[5]  First, as noted above, the provisions of the
Code of Criminal Procedure relating to arrest warrants expressly authorize—with
limited exceptions—that any magistrate may issue an arrest warrant that may be
executed throughout the State.  The
Legislature declined to make any such express provisions for search warrants.
          Additionally, unlike district judges,
who may act for one another, with no geographical restrictions, Tex. Const. art. V, § 11,
no such grant of authority exists for statutory county court judges.
          Finally,
the Legislature’s actions at the time in question regarding county courts
confirm that those courts have limited jurisdiction.  The Legislature has provided that the
presiding judge of an administrative judicial region may appoint judges as “necessary
to dispose of accumulated business in the region.”  Tex. Gov’t Code Ann. § 74.052(a) (West 2005). 
However, the Legislature has also specified that “[a]n active statutory
county court judge may not be assigned to hear a matter pending in a district
court outside the county of the judge’s residence.”[6]  Tex.
Gov’t Code Ann. § 74.054(b) (West 2005).  Similarly, the Legislature has
expressly authorized statutory county court judges and district court judges to
act in each other’s courts; however, that power is limited to “hear and
determine a matter pending in any district or statutory county court in the county.”[7]  Tex. Gov’t Code Ann. § 74.094(a) (West 2005) (emphasis added).  
          The
Texas Constitution does not provide for jurisdiction or powers of statutory
county courts or their judges as it does with district courts and judges.  Statutory county courts and their judges
derive their jurisdiction and authority from the Legislature.  We conclude the Legislature has limited a
statutory county court judge’s authority to acting within the county of the
court.  Accordingly, we hold that the
trial court erred by denying Sanchez’s motion to suppress the evidence obtained
as a result of the search warrant issued by a judge of a statutory county court
of Montgomery County to be executed in Harris County.
           We sustain Sanchez’s sole issue.
Conclusion
          We reverse
the judgment of the trial court and remand this cause.
 
 
                                                                   Harvey
Brown
                                                                   Justice 
 
Panel consists of Justices
Jennings, Higley, and Brown.
Publish.   Tex. R. App. P. 47.2(b).




[1]           See
Tex.
Penal Code Ann. §
49.04(a) (West 2003).


[2]           Article
15.06 provides, in full,
 
            A warrant of arrest, issued by any county
or district clerk, or by any magistrate (except mayors 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 transferred,
shall be authorized to execute the same in any county in this State.
 
            Tex. Code Crim. Proc. Ann. art. 15.06 (West 2005).  Article 15.07 provides that, with
certain exceptions, an arrest warrant issued by a mayor of an incorporated city or town is limited to the
county of issuance.  Tex. Code
Crim. Proc. Ann. art. 15.07 (West
2005). 


[3]           Article
V, section 8 of the Texas Constitution provides, in pertinent part,
 
            District Court jurisdiction consists
of exclusive, appellate, and original jurisdiction of all actions, proceedings,
and remedies, except in cases where exclusive, appellate, or original
jurisdiction may be conferred by this Constitution or other law on some other
court, tribunal, or administrative body. 
District Court judges shall have the power to issue writs necessary to
enforce their jurisdiction.
 
            Tex.
Const.
art. V, § 8.


[4]           This has been referred to as an
untested “assumption.”  40 George E. Dix & Robert
O. Dawson, Texas Practice Series:
Criminal Practice and Procedure § 6.53 (2d ed. 2001).  The commentary also states, “Case law assumes
the jurisdiction of a justice of the peace acting as a magistrate is
coextensive with the limits of the county.” 
Id. n.3.  This latter proposition does not seem to us
to be an assumption; rather, it is the express language employed by the Texas
Court of Criminal Appeals.  See Gilbert v. State, 493 S.W.2d 783, 784
(Tex. Crim. App. 1973) (“[T]he jurisdiction of a justice of the peace, when acting
as a magistrate, is coextensive with the limits of his county.”).   


[5]           Sanchez was arrested and the warrant
issued in March 2009.  Effective
September 1, 2009, the Legislature amended article 18.01 of the Code of
Criminal Procedure, providing “[a]ny magistrate who is an attorney licensed by
this state may issue a search warrant” for a blood specimen for a person
arrested for driving while intoxicated (among other offenses) and who refuses
to submit to a breath or blood alcohol test.  Tex.
Code Crim. Proc. Ann. art. 18.01(j)
(West Supp. 2010).


[6]           To qualify as a statutory county court
judge, the judge must, in addition to other requirements, have resided in the
county for at least two years before the election or appointment.  Tex. Gov’t Code Ann. § 25.0014(2)
(West 2004).
 


[7]           The State argues that section 74.094
provides that statutory county courts “are considered the same as district
courts with regard to sitting as a magistrate outside the bench’s home
county.”  As noted above, the express
language of the statute limits the power to hear and determine a matter pending
to “in the county.”  Tex. Gov’t Code Ann. § 74.094(a) (West 2005).  The provision relating to acting as a
magistrate states, “Judges of district courts and statutory county courts may
serve as masters and magistrates of courts, other than their own, subject to
other provisions of law and court rules.” 
Id. § 74.094(d).  As discussed earlier, “other provisions of
law” limit a statutory county court to acting “in the county.”  


