i   ..




                                 January 27, 1971

         Honorable Ned Granger           Opinion No. M-776
         County Attorney
         County Courthouse
                 -                       Re:    Does Article
                                                ._    * I;oae
                                                veznon's ^-_ of
         Austm, TeXaS
                                                Criminal Procedure,
                                                require that the Jus-
                                                tice of the Peace pre-
                                                sent the State's case
                                                in a non-jury crimi-
                                                nal trial in the ab-
                                                sence of the county
         Dear Mr. Granger:                      attorney?
              Your recent letter to this of.ficerequests our opinion
         as to whether a Justice of the Peace,'in view of Article
         15.36 of Vernon's Code of Criminal Procedure, is required
         to present the State's ca.sein a non-jury criminal trial
         in the absence of the county attorney or his assistant.
              Our opinion is that the Justice of the Peace     has no
         power or authority to present the State's case in     a cri-
         minal trial in the absence of the county attorney     or his
         assistant. Section 21 of Article V, Constitution      of Texas,
         provides, in part, that,
              I . . . The County Attorneys shall represent the
              State in all cases in the District  and inferior
              courts in their respective counties; but if any
              county shall be included in a district in which
              there shall be a District Attorney, the respect-
              ive duties of District  Attorneys and County
              Attorneys  shall in such counties be regulated by
              the Legislature. . .*
              Article 2.02, Vernon's Code of Criminal Procedure, like-
         wise provides that,
              "The county attorney shall attend the terms of
              court~in his county belowthe grade of district
              court, and shall represent the State in all
              criminal‘cases under examination or prosecu-
              tion in said county; . . ."
                                       -3779-
Honorable Ned Granger, Page 2 (M- 776 )


     We find no authority in the statutes or the Constitu-
tion for .khe Justice of the Peace to present the State's
case or represent  either the State or the defendant under
any circumstance*.



       “All prosecutions in a corporation court shall
       be conducted by the city attorney of suck city,
       town or village, or by his deputy. The county
       attorney of the county in which said city, town
       or village is situated may, if he so desires,
       also represent the State in such prosecutions.
       In such casea, the said county attorney shall
       not be entitled,to receive any fees or other
       compensation whatever for said services. The
       county attorney shall have no power to dismiss
       any prosecution Fending in said court unless
       for reasons filed and approved by the recorder."
In view of this Article, those prosecutions originating in
a corporation court, must be conducted by a city attorney
or by his deputy or by the county attorney.
     Article 30.01, Code of Criminal Procedure, provides that
no Justice of the Peace shall sit in any case if he has ever
been counsel for either the State or the accused: and Articie
2378, Vernon's Civil Statutes, in prescribing disqualifica-
tions of the Justice of the Peace. declares that he shall
not sit I. . . in a cause where he may be interested. . .'I
If t!!eJustice of the Peace should attempt to present the
case for the State or represent to any degree either party
to the proceeding, he would thereby disqualify himself to
sit as the judge in the case.

      A trial judge may ask questions of a witness to enable
him to i3ake en intelligent ruling or to make ciear certain
features  of the testimony: his authority, however, falls far
short of "presentation of" the State's case. Texas Digest,
Crim. Law 656, 656(2), 1166 l/2(12), and Witnesses 246.
      Therefore, considering all laws on the subject in para
materia and harmonizing them, 0~1 opinion is that Article
45.36, Vernon's Code of Criminal Procedure, merely imposes
upon the.Justice of the Peace, in the interest of justice,
          I


                              -3780-
Honorable Ned Granger, Page 3 (M-776         )


the duty to examine the witnesses if the State or the
defendant is not represented by counsel. The statute
does not imply that the Justice of the Peace shall have
the authority to undertake the representation of the
State's interest.
                         SUMMARY

        Article 45.36, VernonIt,Code of Crizi-al ?'r:c,;_L*<:::?.
        does not authorize or require the Just.xc cc ii,a
        Peace to present the State's case or uzlarr3ke
        the representation of the Staxe's i;.;zssz :r;
        any case before him.

                                   Ve,# truly yours,
                                             /I 24 'h? -.,._
                                   gL$-Jy       ;~;y;.&tiL./

                                   Xktornq       Ganerai   cf Texas

Prepared by Robert Darden
Assistant Attorney General
APPROVED:
OPINION COi4MITTEE
Xerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jay Floyd
Sam Jones
John Reese
Gordon Cass
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA    WHITE
First    Assistant
