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                              October 6, 1964

      MISS Naomi Haney                    Opinion No. C-327
      County Attorney
      Potter County                       Re: Acquiring of jurlsdic-
      Amarillo, Texas                         tion by Corporationor
                                              Justice Court where
                                              complaint,allegessim-
                                              ple assault but facts
                                              show aggravatedas-
                                              sault under Section 9,
                                              Art. 1147, Vernon's
      Dear Miss Harney:                       Penal Code.
           Your request for our opinion sets out the following
      questions:
              "Question No. 1: In a trial In Corporation
           Court or Justice Court, the complaint alleges
           a simple assault by John Doe in and upon the
           person of Helen Doe, no evidence having been ln-
           traduced that John Doe Is an adult male and Helen
           Doe Is a female, and It not being alleged that
           John Doe is an adult male and Helen Doe is a fe-
           mile. Must the Court dismiss the simple assault
           case before it due to lack of jurisdiction?
              "Question No. 2: In a trial in Corporation
           Court or Justice Court the complaint alleges a
           simple assault by John Doe in and upon the Per-
           son of Helen Doe, the facts show that John Doe
           Is an adult male and Helen Doe is a female;
           however, it Is not alleged in the conplaint that
           JoToloe is an adult male and Helen Doe is a
                    Must the Court dismiss the simple as-
           sault iasa before It due to lack of jurisdiction,
           where the facts show that the defendant could
           be convicted of aggravated assault?"
            Article 1138, Vernon's Penal Code, "Assault and Bat-
      tery,I’provides:
              "The use of any unlawful violence upon the
           person of another with intent to Injure him,
           whatever be the means or the degree of violence

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Miss Naomi Harney, Page 2 (C-327)


     used, Is an assault and battery. Any attempt
     to commit a battery, or any threateninggesture
     showing In Itself or by words accompanyingit,
     an Immediate intention,coupled with an ability
     to commit a battery, Is an assault."
     Article 1147, Vernonla Penal Code, Definitions,pro-
vides:
        "An assault or battery becomes aggravated
     when committed under any omollowing
     circumstances:


         "(9) When committedby an adult male upon
      the person of a female or child or by an adult
      female upon the person of a child."
      (Emphasisadded)
      Our Courts have held that in every Indictment or in-
formation charging aggravated assault, slm le assault Is
necessarily included. Bennett v. State, 1Ii5 S.W. 14 (Tex.
Crim.1916). Aggravated assault and bai?terynecessar$.ly ln-
eludes simple assault and battery; one can not be heard to
complain of conviction of the latter on roof sufficient to
establish the former. Foster v. State, F;S.W. 664 (Tex.
App. 1888). A conviction for simple assault may be had
under a charge of aggravated assault. Booker v. State, 127
S.W.2d 460 (Tex.Crlm.1939).
      By analogy, driving while Intoxicatedis a mlsdemean-
or unless a prior conviction Is alleged and proved, and
where accused has been previbusly convicted of drunk driv-
ing, indictment charging drunk driving may allege one or
more such convictions,and proof of primary offense and one
such prior conviction is sufficientto sustain conviction
for felony under Vernon's Penal Code, Article 63, 802b. Our
Court of Criminal Appeals has held that where no previous
conviction is alleged, the offense of driving while intoxi-
cated Is a misdemeanor of which the count court has jurls-
diction. Wllllams v. State, 342 S.W.2d 551 (Tex.Crlm. 1961);
Coker v, State, 198 Te C      141, 253 S.W.2d 668 (Tex.Crlm.
 932); and, May v, Sta$,r35i) S.W.2d 924 (Tex.Crti.1961).
      The specific answer to your questions lies in the fun-
damental proposition of acquiring jurisdictionby the cor-
poration or justice court. The Court acts upon the facts
alleged or presented in the complaint. If the complaint In

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Miss Naomi Rarney, Page 3 (C&327)


each Instance alleges a mere simple assault, the Court ac-
quires jurisdiction. Under the:provision of,Section 16 and
Section 19, Article 5, Constitutionof Texas, our Courts
have repeatedly held that pleadings or allegations determine
the amount In controversyin placing jurisdictioninto the
county or justice court. No different rule is to be,found
for violations of our penal laws, and the Court must, there-
fore; rely on the facts alleged In the complaifit.The an-
swer, therefore, to both your questions 1s "No."
                       SUMMARY
              CorporationCourts or Justice Courts are
         not required to dismiss an alleged simple as-
         sault case which is in fact an aggravated as-
         saulti:or,when'.laterthe facts &t the trial
         reveal an aggravated assault.
                                     Very truly yours,
                                     WAQGONER CARR
                                     Attorney General of Texas



                                       V. F. Taylor   u
                                       Assistant Attorney General
VFT/dt
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairmaxi
Scott Garrison
Brady Coleman
Howard Fender
George Black
APPROVED FOR THE ATTORNEZ GENERAL
By: Roger Tyler




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