   .       .




                 Tr.7~    A~RNEY                    GENERAL
                               OF-XAS
                            AVSTIN.   TExaS      78711


                                 June 12, 3.969


Honorable Hollis D. Gannon                 Opinion No. M-416
District Attorney
0th Judicial District                      Re:      The filing, processing
P. 0. Box 111                                       and disposition of felony
Greenville, Texas                                   complaints with the Justice
                                                    of the Peace and related
Dear Mr.       Garmon:                              questions.

     You have requested the opinion of this office in
regard to the proper procedures to be used in the filing,
processing and disposition of felony complaints and
related matters in the office of the Justice of the
Peace. You pose twelve questions for our consideration
and we will set out each question and follow with our
answer before proceeding to the next question.  All
Articles cited herein are from Vernon's Code of Criminal
Procedure unless otherwise indicated.

     "1 . Should the Justice of the Peace make a memo-
randum on his docket listing  and identifying each instru-
ment recerved by hrs office?"

     The keeping of a docket reflecting criminal matters
by a justice of the peace is governed by Articles 45.13
and 45.14. These articles provide as follows:

       Art. 45.13        Criminal docket

          "Each justice of the peace and each
       recorder shall keep a docket  in which he
       shall enter the proceedings in each trial
       had before him, which docket shall show:~

           1.     The style of the action;

           2.     The nature of the offense charged;
          3. The date the warrant             was   issued and
       the return made thereon:



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Honorable Hollis D. Garmon,   Page 2, (M-416)



        4. The time when the examination or
     trial was had, and if a trial, whether it
     was by a jury or by himself;

        5.   The verdict of the jury, if any;

        6. The judgment and sentence of the
     court;

        7. Motion for new trial, if any,   and
     the decision thereon;

        8.   If an appeal was taken; and

        9. The time when, and the manner in
     which, the judgment and sentence was en-
     forced."

     Art. 45.14   To file transcript of docket

        "At each term of the district court,
     each justice of the peace shall, on the
     first day of the term of said court for.~
     their county, file with the clerk of said
     court a certified transcript of the docket
     kept by such justice, of all criminal cases
     examined or tried before him since the last
     term of such district court: and such clerk
     shall immediately deliver such transcript
     to the foreman of the grand jury."

     It is our understanding that these statutes are
interpreted by many justices of the peace as requiring
that only criminal cases within the jurisdiction of the
justice court need be reflected in a docket book and by
docket entries.

     However, since Article 45.13 refers in Subsection 4
to "examinations" as well as trials, it would seem that the
statute expressly covers examining trials and presumably
other matters involving the filing and processing of felony
complaints and misdemeanor complaints which charge offenses
coming within the jurisdiction of the county court. Further-
more, Article 45.14 requires the submission of a transcript
of the criminal docket kept by the justice of the peace
to the grand jury. This provision clearly suggests that


                              - 2070-
Honorable Hollis D. Gannon,   Page 3, (M-416)



the justice of the peace docket should reflect all criminal
proceedings, including felony and county court misdemeanor
complaints which are filed in a justice court.

     Accordingly, we find that it was clearly the intent
of the Legislature in enacting Articles 45.13 and 45.14
to require the justice of the peace to keep a docket
reflecting all criminal matters handled by him and to
note on his docket all actions taken and all instruments
received in connection with each criminal proceeding.

     "2 . Should the Justice of the Peace deliver all
of the instruments received by his office, including war-
rants, affidavits, voluntary statements, bonds, and
Incidental papers sealed in an envelope to the District
Clerk or should only the evidence obtained from examining
trials be sealed in such envelopes?"

     Articles 15.01, et seq., provide that a magistrate,
including, of course, justices of the peace, may take
sworn complaints of offenses allegedly committed and
issue warrants of arrest for the taking of the asserted
offender. Articles 14.01 et seq. provides that arrests
can be made without a warrant in certain cases.

     Whether the arrest be made with or without warrant
the Code of Criminal Procedure requires that the arresting
officer take the person arrested before a magistrate, usually
a justice of the peace. Article 16.01, et seq., grants to
the person arrested, the right to have the validity of
the accusation tested by an examining trial. particle
17.30 provides:

    Art. 17.30    Shall certify proceedings

       "The magistrate, before whom an exami-
    nation has taken place upon a criminal
    accusation, shall certify to all the pro-
    ceedings had before him, as well as where
    he discharges, holds to bail or commits,
    and transmit them, sealed up, to the court
    before which the defendant may be tried,
    writing his name across the seals of the
    envelope. T?e voluntary statem.?n; cf the
    defendant, the testimony, bail bonds, and
    every other proceeding in the c&e, shall
    be thus delivered to the clerk of the proper
    court, without delay." (Emphasir- supplied,
                              -2071.
Honorable Hollis D. Garmon,   Page 4, (M-416)



     One interpretation of this statute is that only the
proceedings, including all instruments received therein,
of an examining trial need be placed in an envelope,
sealed and delivered to the clerk of the proper court.
However, while other magisterial proceedings need not
be   sealed, a reading of the entire Code of Criminal
Procedure suggests that it was the legislative intent
that all such proceedings (relating to felony and
county court misdemeanor cases) should be transmitted
to the appropriate court. For example, Article 17.32
requires the magistrate to file with the proper clerk
the complaint and warrant where no arrest has been made.
Article 15.18 provides that a magistrate who sets bail
for an accused arrested under an out-of-county warrant
shall immediately transmit the bond taken to the court
having jurisdiction of the offense. Article 18.29
requires the magistrate to keep a record of proceedings
had in connection with the issuance of search warrants
and to deliver such records to the clerk of the proper
court.

     Accordingly, it is our opinion that all proceedings
in a justice court. including instruments received therein
as a part thereof, that pertain to felony offenses or county
court misdemeanor offenses, should be certified and forwarded
to the court having jurisdiction over the offense in
question.  However, except for examining trial pro-
ceedings, the transmitted records need not be sealed
in an envelope.

     Observation is made that the magistrate may not have
in his possession for transmittal all of the instruments
and papers incident to a particular case. For example,
where the sheriff or other peace officers have taken
bail, the bond will not be in the possession of the
magistrate.  In such case, the magistrate has no duty
to insure that the bond is delivered to the proper
court or other authority.
     "3 . When the Grand Jury receives the envelope con-
taining the hereinbefore mentioned papers from the District
Clerk, is the Grand Jury authorized to open such envelope
without a Court order?"

     As noted above, a justice of the peace is required
to transmit instruments reflecting proceedings in criminal
cases, not within the jurisdiction of the justice court,


                              -2072-
Honorable Hollis D. Garmon,   Page 5, (M-416)



to the proper court. Article 17.30 requires that certain
of these proceedings be forwarded in a sealed envelope.
Article 17.31 provides:

     Art. 17.31   Duty of clerks who receive such proceedings

        "If the proceedings be delivered to a
     district clerk, he shall keep them safely
     and deliver the same to the next grand jury.
     If the proceedings are delivered to a county
     clerk, he shall without delay deliver them
     to the district or county attorney of his
     county."

     The above quoted statute requires the clerk to
make delivery to the grand jury (or to the district or
county attorney in county court cases), and no court
order is required to effectuate such delivery and opening
by the grand jury.

     "4 . Is the attorney for the Defendant entitled to
open the envelope containing the search warrants, bonds,
confessions, and other statements without a Court order?"

     As noticed earlier, the district clerk is required
by Article 17.31 to keep the sealed envelope of the
examining   trial proceedings "safely" until delivered to
the grand jury. While the district or county attorney
may have access to the proceedings in order to prepa-e
the case for grand jury presentation (see Attorney
General's Opinion No. C-177), the terms of Arti.:le 17.31
do not expressly prohibit the clerk from allowing access
to the sealed envelope to a defendant's attorney.     However,
the statute cannot be said to require the clerk to disclose
the contents   of the envelope to a defendant's attorney
or to "entitle" such attorney   to open the envelope.   Where
the clerk chooses not to permit inspection of the papers
in the envelope by the defense counsel, a court order
may be sought to require inspection.    This order may be
obtained by a showing of "good cause therefor" under
the procedures. for discovery prescribed by Article 39.14.




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Honorable Hollis D. Garmon, Page 6, (M-416)



     “5.  Does the Justice of the Peace, in a felony case,
tabulate and calculate the costs up to the point when he
delivers the papers to the District Clerk, or does tb
District Clerk tabulate all of the costs in a crimina?
case under Article 1064 revised by Article 24101"

     Article 1009 requires a justice of thepeace to
"keep a fee book and enter~therein all fees charged
for service rendered in any criminal action or pro-
ceeding", necessarily including any fees incurred
through the filing, processing and disposition of
felony complaints.  The record of fees that arise
from felony complaint cases are part of the proceedings
in such a oase and should be transmitted along with
other instruments and records to the district clerk.
Upon final disposition of a felony case, the district
clerk will tabulate all fees and costs, including those
incurred in the justice of peace proceedings.

     “6.  Is the Justice of the Peace supposed to keep
a book showing the facts for which th b i     f the
search warrant was issued, or is thatere%    Eo be sent
to the District Clerk's office?"

     Before a search warrant is issued, a sworn complaint,
or affidavit, must be filed with the issuing magistrate
setting forth facts demonstrating that probable cause
exists for the issuance of the search warrant.     Article
18.01. The filing of the complaint and the issuance
(or denial) of the search warrant should be noted on a
docket sheet. The return of the warrant and the inventory
of any property seized should also be recorded by the
magistrate.   Articles 18.21 and 18.27. Any hearing
had on the propriety of the issuance of the warrant,
held pursuant to the provisions of Article 18.23, et seq.,
should be noted on the docket sheet together wfth the
magistrate's decision in this connection.   Article   18.29
requires the magistrate to keep a record of all proceed-
ings and certify the search warrant proceedings and deliver
them to the clerk of the court having jurisdiction of the
case, including all the original papers relating    thereto.
The original docket sheet should be retained by the justi~ce
of the peace.




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Honorable Hollis D. Garmon, Page 7, (M-416)




     The answer to the foregoing question depends on the
procedure adopted by a particular justice of the peace.
While justices of the peace are required to keep docket
sheets relating to all criminal proceedings, there is
no statutory provision requiring the retention of any
record. Some justices, however, do make and retain copies
of all instruments filed with their office.




     Where a complaint is filed charging an offense that
is either a felony or a county court misdemeanor, the
justice of the peace will ordinarily wait until the warrant
is executed, bail has been set and an examining  triz? held,
if one is requested, before transmittal of the pape:s to
the appropriate court.

     However, where no arrest is made after a reasonable
time, the magistrate must transmit the complai:& and
warrant of arrest (and list of the witnesses) -CD the
Proper court. Article 17.32.

     Often, a defendant will be arrested and the magistrate
will set bail but the defendant is unable to make bond
at the time of his appearance before the magistrate.
In such case the proceedings, when the examining trial
has either been held or waived, should be transmitted
to the court having jurisdiction. This transmittal
should be accomplished even though "ha a.cused may later
make bond with the sheriff or other peace officer, since
it is not incumbent upon the justice of the peace to
forward any papers that are not within his possession.

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Honorable Hollis D. Garmon,    Page 8, (M-416)



       Likewise, the confession of the accused is usually
of no concern to the magistrate except where made during
the course of an examining   trial.  Where such a confession
is made, it should, of course, be forwarded to the proper
clerk along with the other papers. However, a confession
made to a peace officer or to a county or district attorney
does not properly become a part of the magisterial       records,
unless   introduced by the state in an examining  trial.

     “9.  What type, if any, seal is required on the enve-
lope that the Justice of the Peace writes across or places
on the envelope mentioned In Article 17.30?"

     Article 17.30 requires that examining trial proceedings
shall be delivered to the proper court after they have
been certified and sealed in an envelope. NO particular
type of seal is required and where the envelope has its
own sealing  agency or glued flap, the justice of the
peace merely writes  his name across the sealing portion
of the envelope. Where sealing   wax is used, the justice
will sign on the wax wafer.

     "10. If a person has been sentenced to the State
penitentiary and Court costs have not been paid, and he
requests parole before his term has ended, can the County
or State make him serve additional time to comply with
Court costs, the same as we do in County Court wher.2 a
fine is imposed and court costs is attached under A?acle..-.
2410?"

     Parole from a state penitentiary is a mc:Ltrr for
determination by the Board of Pardons and ParLies and
the Governor.  While the failure to pay court costs that
have been assessed against a convicted defendant is a
factor to be considered by the Board, there is LO way
that the state or the county can require a defendant to
serve additional time to compensate for the non-payment
of costs once parole has been granted.

      "11. Does the Foreman of the Grand Jury have the
authority to call a Defendant before the Grand Jury--for
questioning, p articularly where the Defendant does not
have an attorney  and has not had an attor:?ey appc.i.ntetf
for him? If the Foreman c;.? call thz Dec',dant, is it
necessary  to appoint an attorney for the Defendant  before
                                                  ---I__
bringing him before the Grand Jury, giving him the--.,.
                                                     warning,
and questioning such Defendant?"

                               -2076"
    .    .




Honorable Hollis D. Garmon,    Page 9, (M-416)



      Article 20.10 authorizes either the foreman of the
grand jury or the attorney  representing the state to
issue process for the compulsory attendance of witnesses
to testify before the grand jury. A defendant or person
under investigation  by the grand jury is not exempt from
such process and may be required to appear before the
grand jury. Some district and county attorneys do require
attendance by a defendant and offer to him the opportunity
to testify in order to forestall a claim by the defendant
later that he was not permitted to appear before the grand
jury.

      Where a defendant is required to appear, a careful
explanation of his rights and privileges should be made
by the foreman or by the state's attorney. The defendant
should be advised that his past actions       are being   inquired
into by the grand jury, and he should be informed of any
accusation   against him, and he should be advised of his
right to have an attorney to consult with in connection
with his appearance before the grand jury; he should be
advised of his right to remain silent       and of his right
to terminate   the grand jury interrogation      at any time
should he initially   decide to testify and later change
his mind: he should further be warned that any testimony
that he gives before the grand jury may be used as evidence
against   him in a criminal trial. Should the defendant
request the services   of an attorney    and he is indigent,
one should be appointed for him before any interrogation
is commenced.

      It should be observed that the foregoing discussion
does not deal with the power of the grand jury to compel
a defendant to testify, for it may well be that an accused,
pursuant to certain  statutes authorizing the procedure,
can be made to testify in grand jury proceedings with
such compulsion nullifying any later criminal prosecution.
Rather, our discussion is focused toward the practical
aspects of requiring a defendant to appear before a grand
jury.




                               -2077-
                                                     .    .




Honorable Hollis D. Garmon,   Page 10, (~-416)



     "12. Does the District Attorney have authority to issue
a summons to cause witnesses to be brought before the
Grand Jury or is that reserved to the Foreman of the Grand
Jury, the District Clerk and the Court?"

     Your last inquiry is answered by Article 20.10
which provides as follows:

     Art. 20.10   Attorney or foreman may issue process

        "The attorney representing the state, or
     the foreman, in term time or vacation, may
     issue a summons or attachment for any witness
     in the county where they are sitting; which
     summons or attachment may require the witness
     to appear before them at a time fixed, or
     forthwith, without stating the matter under
     investigation.'

     It is clear that the district attorney does have the
authority to issue a summons to require witnesses to appear
before the grand jury.
                       SUMMARY

        Articles 45.13 and 45.14 of the Code of
     Criminal Procedure require that a Justice
     of the Peace keep a docket reflecting all
     criminal matters that come to his attention
     in both his magisterial and judicial capacities.

        All instruments concerning a particular
     criminal matter should be forwarded to the
     clerk of the court having jurisdiction over
     the offense charged, including search war-
     rant affidavits and a tabulation of court
     costs in a magisterial proceeding. All
     forwarded papers are available to the grand
     jury for their use and consideration without
     a court order.

        When a defendant has been granted parole,
     he cannot be required to serve additional
     time to compensate for the non-payment of
     assessed court costs.



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Honorable Hollis D. Garmon, Page        11    (M-416)



        A defendant can be summoned before a
     arand jury; when so summoned he should be
     advised of his constitutional rights in
     connection with his appearance, including
     his right to the services of an attorney.
                                2
                           Ve*$+truly yoyrs,



                                             C. MARTIN


Prepared by Lonny F. Zwiener
Assistant Attorney General

APPROVED:

OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Ralph Rash
Alfred Walker
Bill Craig
Robert C. Crouch

W. V. Geppert
Staff Legal Assistant

Hawthorne Phillips
Executive Assistant




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