                                                             R-481




Hen; SamB, Ball
County Attorney
H&rrison Cbunty
Marshall, Texas




           -In 18SS the County Commiaaionerat
     Court of HarrlcsonCounty.,Texea, passed
     an order fixing the terms of hp&dI.ng
     eountr sourt fa thir ocEuatypr'971tbkbw
     that auoh tars8 might be held begiting
     on the firat Mondays in Jamary, March,
     May, July, September, November and ex-
     tendiag sight weeks froa eueB dates,. No
     other brd:ersiace 16199meeee~~$ol&am
     been paaasd by suoh court uatI.1~
                                     rester-
     day5 Xay 12, 1947, the ~;~~~~Isei.onerer'
     Court paaea~ an order on the aubjeot$,a
     OOpJrsr wiiieb$8 atteshrd har.toa
            *Reoeatly plmr Qf guilty w%m as-
     cepted hy i&o Cmmty Judge and peaaltiss
     assers04~ one @a April lo,,1941 and the
     other oztA@l    26$ $?47r Yotiens for new
     trial were filed iraataL of these 08888
     aad grasted by the court on other grounds,
     but ia srah ease the attorney reprsuntr
     ing the dsfandant  arrez%ad that the oow
     viationn w~r(l*ull aad veld beruse   tk@re
     vati a~ term or aourt     uakdor thr   law at    the
     tiniesof tb6 ourt accepting tha plea*.,
     He somad not, fse that he would oontlnoleto
     raise the peiat until the iasm WBS $quare-
     ly jbiglsd,a@ ‘ISthemtare nqusst ths op-
     IAiOb ab 3     &wprxtmmt a@ tiewhotko~ the
     ple$# at 3 1%~ mertiorur~d rbwa  wore lyal.
     In ether mrdl+ ths &tommy wys that ua-
     id.1the Grm&rki.anarr~ Qovrrt permd a aiew
     rrdor,   HQT!C&W~Oeubty way .ahdOSthe           gOa@P
     a1 piwvi*~~onr        8tatuter RB ,Cal;rtLtu-
                      Of the
     tiob# a#   that Ramiron Ccuatg court *a#
Don, Sam B, Hall - Page 2


     only in legal term time for three weeks be-
     ginning on the first Monday in February,
     May, August and November. He further says
     he has doubt as to whether the present Com-
     missioners' Court oan do anything to reotlfy
     the situationuntil additionalLegislative
     provision ie made ror Harrison County.
            ”
                *   D   *   .



           "By Virtue 61 Article    5, Se&ion 22 of
     the Constitutionwhioh authorizes the Legie-
     lature to change the juriedlotionof oounty
     leture
     courts, the Lsgi8lature seeinsto hare peered
     three aote making muoh ohanges. In 1011 thr
     County Court we8 deprived of jurlrdiotlonin
     oivil eaaam by Acts or 1911, pa 90. '(3~
     Art. 1970-214,V. A. C, 9.) In 1913, this
     law was amended solnewhet   by Aots 61 1913, p.
     103, By Seotion 7 or the 1913 sot, it was
     provided 'The oounty aommissionere~court of
     said county may hereafter fix the terms of
     said court whenever it may be deepledae@os-
     sary.' (See Art, 1970-223,V.A.C.3. Both
     the 1911 and 1913 Acts sabm t0 have 1ncorpor-
     ated a general repealing olause: 'That all
     laws and parts of laws in oonflict herewith
     be and the aame are hereby repealedit (Art.
     1970-217,V.A.C,S,)
           "In 1927 the 40th Legislaturepassed
     the following:
           'SF%, 1, Hereafter the County Court of
     Harrison County, Texas, shall have the same
     mtion        and shall be subject to tpr;y
     provisions as County Courts aenerally h    Rh-
     out the State, under the Constitutionand Gen-
     era1 Laws of the State of TexasO1
           "Section 2 of this Act conformed the jur-
     isdiction of the District Court of Harrison
     County to the changes made in jurisdiction
     made in the County Court. Se&ion 3 repealed
     all conflioting lek and partsol laws. This
     measure was ef'fectireMaroh 16, 1927,
           "It is asserted that under the reason-
     ing of the Court of Criminal Appeals in the
Hon. SalaB. Hall - Page 3


     case of Smith v. State, 183 S. W, 26,
     175, all judgments o? aonviotionentered
     Kthe Harrison County oourt on any day
     not during the term of the oourt as fixed
     by the Constitutionand grneral statutes,
     are void.
           “You may readily uee the lhportanoo
     and gravity o? the situation,and
     careful oomsidrrationand ahioe   WK.
     very much approa1ated.v
           That part of Seotion 29 of Artiale V of the
State Constitutionpertinent hare Is as iellona~:
           W* * * Until otherwise provided, the
     terms of the County Court shall be held en
     the first Monday in February,Nay, August
     and November, and may re in in srrsiom
     three weeks.*           T
            Pursuant to the above quoted provlsi,onef
the Constitution+Article 1962* 7. C. S+ was passed ia
1885 ana is as roii0ws;
           “The aotiaaionars court maye at a
     regular tern thereor, by an order eatrr-
     ed upon its reaordsl provlda ror more
     terms of the aonnty aourt for the trans-
     aotion or oivil. criminal and probate
     business, and ffx the times at whiah eaah
     of the-four terms required by the Censti-
     tutionl and the terms exceeding four, if
     wf   shall be held, not to exceed six m-
     aua lg, ana may rir the length or each
     term” When the number of the term8 Of tke
     aouaty eourt has been fixed,,the oourt
     shall not ohange the oram? before one year
     rrom the date of entry of the original.or-
     der rixing such termab (Acts lgbSr pd 55)”
           Artiole 1961, V, C* S. Is a8 follswa:
           *The oounty oourt shall held at
     least rour terms for both civil and erlm-
     inal business annually, and such ether
     term each year as may bo fixed by the
     commissioner8oourt. After having fixed
 Ho&. aam B. Hall - Page 4


       the times and number or the ‘termsef a
       oounty court, they shall not change the
       sams until the expiratien or one year*
       Until, or unlrss otherwireprovided, the
       term of the eourty court shall be held
       on the first ?donday.lnFebruary,May
       August and November, and may remain In
       semion three wmJcao (Const.Amendment
       11383,art. 5, MC. 29)”
             Artlole 586, C.&P., provides that:
             Vach oounty oeurt shall held a
       team for orbhal   buaiikesaon the rlridi
       Monday in every aenth, or at suoh ether
       time as may have been fixed in aeeord-
       anon with laws”
            That part of Seatira 17 of Artlola V of the
 State Constitutionpertinent here ia am icll.ewrt
             “The Ownty Court ahall h&d a
       tom ror olriL bus%aarr at haat a~~6
       in every two montha; and shall dlaposo
       of probate bualness, either In term
       tfma or vacation aa may be proridod by
       law, and aaia court rhall held a term
       ror arlmlnal business once in svrrf
       month a# may be provldod by law. a .”
             Insorar as the record reveala, the County
Court or Harrison County has ne?er baoa divested or Jurla-
aidion  ib arimlml aasalr.
             We hnew of no law whloh prohibits a term er
county court la criminal matters being dirferent from tha
term or oourt in oivil.aaws. On the oontrary, in risw.
of Article 586 C,C,P,, and Seetioa 17 of A&b QI supra
it olearly indicates that there may be differeat terma 11
oounty court for or@bal amd eiril QPSO~.
               The sass of Smith v. State, 183 81 W. (2&j
175, was one where the county aourt of Marion County had
been direstad, of jurladioticdn in IL897 ir orklsL1 oasmb
Juriediotion’1nsuch aasea was re8trred to the oaunty
owrt in 193$i,but the Commissioners’Court or said roun-
ty had never passed any order setting the torma of the
oourt subsequentto auoh restoratira.
.’   -
                                                                     ‘.




         Hen. Sam B. Hall - Page 5


                     The oourt held thnt the only term of county
         court in Marion County wae that set by Section 29 of
         Artiole V, aupra, of the Ooraetituflon,whioh shall be-
         gin on the firet Mondays in February, May, Au@& and
         November, and may remain in session three weeks. The
         court held further that the plea of guilty having been
         made ana judgirsntentered on June 24, 1944, was not
         during a term of court a8 fixed by the Constitutionand
         the Legislatureand thexefore,having bsen entered
         while “he court was in vaoation,wae void.
                      The facts in the iaafant
         different from those in the
         ty Court or Hsrrlara;P County                                    ,.
         jurledlationin orimiaal
         stitution and the srtmtutes,  the
         Harrison County pro+Lded ltblgQ% tbrt ithstalbne* Om-
         ty oourt might be held the first MWdafa Sa ifa
         March, May, July, Sbptember aad NoVombW and
         eight weeks rrom suoh dates. Bvea thhoughthe QeWr
         Oourt had been divesteifof civil matters aaS d891y)rt&a
         terms of ,countgcourt in oivil matter@ may hav+ Berm
         changed,”the term8 or the county o~urt of
         ty ro ~.tirU.nal cases remains as tit by
         OXB!J$uuti“.until changed                                 ;
         aotionr This beiag true,                                  .’L
         Harrison County in criminal cases
         Monday in Maroh and continue& for eight reekn fP&# auuh
         date*
                     Therefore, in view .oithe iora eimg
         are respectfullyadvised that it ia the Op!uiW T~;&ri#
         Department that the pleas ef guilty sa&sre(:oh
         lOth, 1947, and April 26th, 1947, were both had“pB term
         time, and therefore valid in this rwpwot4




                    Since   the
               riaoa Oounty in
               of coylty court
               days in January, Marob, May, JuXy,,SM$tsmWF
               and November, and ~rtaaQin(: eight weah Pf@a
               such dates, and $urtheF# since the t~ma of
               said County Court heve aovlbrMaa @lunged i%
                                                        . .. _




Hon. Sam B, Hall - Page 6


        orlminal oamsg pleas of guilty entered OQ
        April lOth, 1947, and April 26th, 1947, were
        both had in term time; therefore valid in
        this m&pest, Art, 1962 V, C. S.; Art 589
        c. co PO
                                  Yours very truly,
                              ATTORNEPGENERALOP TEXAS




BAoWR




                              ATTORNEY GENERAL
