                             @ffice of t&zRlttornep @enera
                                           .&date of llCexae
DAN MORALES
 ATTORSEY
       GENERAL                             December 20, 1993

     Ms. LaVonne Garland                                  Opinion No. DM-277
     Interim Director
     Texas Board of Architectural Examiners              Re: Whether complaints under V.T.C.S.
     8213 Shoal Creek Boulevard, Suite 107               article 2494 section 13, may be tried in
     Austin, Texas 78758-7589                            justice courts as class C misde-
                                                         meanors (RQ-2 15)

     Dear Ms. Garland:

           Your predecessor requested our opinion concerning the e.tTect of the 1991
     amendment to section 12.23 of the Penal Code upon V.T.C.S. article 249a, section 13.
     The 1991 amendment to section 12.23 raised the maximum tine for a class C misdemeanor
     from $200 to S5OO.t Section 13 defines the unauthorized practice of architecture as a
     misdemeanor punishable by a tine ranging from $250 to $l,000.2

             Your predecessor asked:
                    Pursuant to [the 1991 amendment] increasing the fine amounts
                for Class C misdemeanors to Five Hundred Dollars (SSOO.OO),may
                complaints tiled under Article 2494 Texas Revised Civil Statutes
                Annotated, regarding non-registrant violations be tried in Justice
                Courts as Class C misdemeanors?

     There are two parts to this question: (1) may complaints filed under article 249a be tried
     aa class C misdemeanors? and (2) may complaints under article 249a be filed and tried in
     justice court?

            We apply the following considerations in answering the first part of the question.
     Section 1.03 of the Penal Code provides in part: “[T]he punishment affixed to an offense

               1kaa1 Code section 12.23 now reads: “An individualadjudgedguilty of a Class C mibmeanor
     shall be pmdshcdby a fine not to exceed SSOO.”

              ?ktion 13 of article249a, V.T.C.S., providesin part: “(a) If any person. shall, for a fee or
     other direct compensation,pmwe the practiceof the profession of architechue in this State as herein
     defined,. without first having complied with the provisionsof this Act, such person shall be deemed
     guilty of a misdemeanorand upon conviction thereof shall be fined not less than Two HundredFifty
     Dollma ($250.00) and not morethan One ThousandDollars(Sl,OOO.OO)     for each offense.”
Ms. LaVonne Garland - Page 2               (DM-277)




defined outside this code shall be applicable unless the punishment is classiied in
accordance with this code.” Penal Code $1.03(b). The offense defined in section 13 is
not an offense defined in the Penal Code. Furthermore, article 249a does not classify a
violation of section 13 as a class C misdemeanor.

         For the foregoing reasons, we conclude that the class C misdemeanor fine
limitation set forth in section 12.23 of the Penal Code has no bearing on the range of fines
established in section 13 of article 249a, V.T.C.S. Violations of article 249a, section 13,
may not be tried as class C misdemeanors.

         Regarding the second part of the question, the Texas Constitution              grants
jurisdiction to the justice courts as follows:

                 Sec. 19. Justice of the peace courts shall have original
           jurisdiction in criminal matters of misakmecmor cases punishable by
           fine only, exclusive jurisdiction in civil matters where the amount in
            controversy is two hundred dollars or less, and such other
           jurisdiction as may be provided by law.

 Tex. Const. art. V, 8 19 (emphasis added). The punishment provided in article 249a,
 section 13, is a fine only. Therefore, it appears that the justice court has original
jurisdiction of violations of article 249a, section 13, by virtue of section 19 of article V of
the constitution.

          On the other hand, article 4.11 of the Code of Criminal Procedure purports to
 establish the following monetary limitation on the criminal jurisdiction of the justice
 courts: “Justices of the peace shall have jurisdiction in criminal cases where the tine to be
 imposed may not exceed five hundred dollars.” Unlike the constitutional provision, article
4.11 does not expressly lit justice-court jurisdiction to criminal cases punishable “by fine
only” and therefore might be construed literally as a grant of additional jurisdiction of
crimmal cases punishable by fine and some other penalty rather than as a limitation on the
justice court’s constitutional, fine-only jurisdiction. Nevertheless, the provision’s statutory
predecessor, which also lacked such an express limitation, was construed in the case of Ex
parte Morris, 325 S.W.2d 386, 388 (Tex. Grim. App. 1959), as impliedly incorporating
the fine-only jurisdictional limitation by its codification from an even earlier statute, which
did contain the express limitation. AccordExparte Howard, 347 S.W.2d 721 (Tex. Grim.
App. 1961). We therefore construe the current article 4.11 as a purported statutory
limitation of jurisdiction to criminal cases punishable by a fine only in the the maximum
amount of $500 or less. This construction of article 4.11, contrary to the constitutional
grant of jurisdiction, would deny the justice courts jurisdiction over prosecutions under
article 2494 section 13, because the tine under section 13 may exceed $500.




                                          p.   1453
Ms. LaVonne Garland - Page 3                (DM-277)




         The inconsistency between section 19 of article V of the Texas Constitution and
article 4.11 of the Code of Criminal Procedure arose in 1985, when the constitutional
provision was amended. See SIR. 14, Acts 1985, 69th Leg., 5 7, at 3359. Before the
constitutional amendment, both provisions contained a $200 limitation on the criminal
jurisdiction of the justice courts. Compare Tex. Const. art V, Q 19, us umenakd by
H.J.R. 37, Acts 1977, 65th Leg., $ 1, at 3372 (prior version of article V, section 19:
 “Justices of the peace shah have jurisdiction in criminal matters of ah cases where the
penalty or fine to be imposed by law may not be more than for two hundred dollars”) with
Acts 1965, 59th Leg., ch. 722, $ 1, at 331 (prior version of article 4.11: “Justices of the
peace shah have jurisdiction in crimimd cases where the fine to be imposed by law may not
exceed two hundred dollars”); cf: S.J.R. 14, Acts 1985, 69th Leg., § 7, at 3359 (limitation
struck out in resolution to amend constitution). Article 4.11 was amended to its current
form in 1991. See Acts 1991, 72d Leg., ch. 108, 5 4.3 We have found nothing in the
legislative history of the 1991 amendment to shed light on the legislative intent, if any, in
regard to the conflict between the statute and the constitutional provision.

         After due consideration, we conclude that the $500 limitation in article 4.11 of the
Code of Criminal Procedure is unconstitutional because it would deprive the justice courts
of some of their jurisdiction. This conclusion is based on the principle that the legislature
can add to, but it cannot take away from, the jurisdiction granted to the district wurts and
inferior wurts in the constitution.

         This principle has been applied in several cases involving the jurisdiction of the
district wmts. Thus, in Reosonover v. Reasonover, 58 S.W.2d 817 (Tex. 1933), the court
held unwnstitutional a statute that purported to withhold from a certain district court
jurisdiction of all causes for divorce and adjudication of property rights related thereto and
to confer exclusive jurisdiction of those causes to a criminal district court. The supreme
court decided that the statutory attempt to oust the district wurt of such jurisdiction
violated section 8 of article V of the wnstitution, which granted the district court “original
jurisdiction ‘of all cases of divorce.‘” Id. at 818 (quoting Tex. Const. art. V, $8 (1891)).
The court noted the language in the 1891 amendment to section 1 of article V of the
wnstitution, providing that the legislature “‘may conform the’jurisdiction of the district
and other inferior courts [Ito’” the jurisdiction prescribed for other wurts that it
establishes, id., and construed the provision to mean that the legislature could make the
district wurt’s jurisdiction concurrent with that of any statutory court but could not
deprive the district court of its constitutional jurisdiction:



        3HouseBill 407 of the 72d Legislatu~, which amendedarticle 4.11, also amended, inter ah,
seaion 12.23 of the Penal Code to increasetheclassCmisdemcanorfinemaximumfromS200to'S500.
Acts 1991,72d Leg., ch. 108, 8 1, at 681.




                                           p.   1454
Ms. LaVonne Garland - Page 4                   (DM-277)




                 The amendment to section 1, article 5, adopted in 1891, does
           not purport to take away from the district court, or to authorize the
           Legislature to take away from it, its constitutional jurisdiction. It
           does authorize the Legislature to take from it the exclusive nature of
           its jurisdiction over the subjects mentioned in section 8, article 5, and
           permits the Legislature to give jurisdiction over them also to other
           courts.
Id. at 819; see Lord v. Clgvton, 352 S.W.2d 718, 721-22 (Tex. 1962) (adhering to
Reasonover holding); see also Jordan v. Crudgiqton, 231 S.W.2d 641, 643 (Tex. 1950)
(observing that statute creating court of domestic relations did “not undertake to divest
any court of its wnstitutional jurisdiction and vest same exclusively in the wurt of
domestic relations”).

        The holding of Reasonover applies with equal force to the justice courts because
section 1 of article V of the constitution applies by its express terms to courts inferior to
the district court. That provision still reads, in pertinent part: “The Legislature may
establish such other courts as it may deem necessary and prescribe the jurisdiction and
organixation thereof, and may conform the jurisdiction of the district and other inferior
courts thereto.” Tex. Const. art. V, 8 1 (emphasis added).

          In Attorney General Opinion TM-1089 (1989) we decided that the 1985
amendment to section 19 of article V of the constitution controlled over the $200
jurisdictional limitation then contained in article 4.11 of the Code of Criminal Procedure.
We also decided in that opinion that the constitutional amendment’s “provision for justice
court jurisdiction over ‘misdemeanor cases punishable by fine only’does not require further
legislative action to be given effect.” Attorney General Opinion JM-1089 at 2. We here
reaflirm that opinion4 and add that the 1991 amendment to article 4.11 is unconstitutional
and void to the extent it purports to increase the limitation to $500.5 Therefore, we
conclude that complaints under article 249a may be filed and tried in justice wurt.



        41~ L*ter Opinion No. 92-23 (1992) this 0ffiice wntmdkted the holding 0f Atto    cheral
Opinion JM-1089that the provisionof justice courtjurisdictionof “misdemeanorcam punishableby fine
only”containedin section 19 of articleV is self-enacting.LetterOpinionNo. 92-23is overrated.

        ‘Lestthere be wnfusion, we emphaske that this opinion has no applicationto the jurisdiction of
the wmts over class A, B, and C misdemeanorsas those offenses are defined, respectively,in Penal Code
sections12.21 through 12.23. Regar&ss of whetheror not the $500limitationin article 4.11 of the Code
of Crimiaal Prowlure is valid, the justice courtshavejurisdiction,Tex. Const. art. V, 8 19, over class C
misdemeanorsbecausethose offenses are punishableonly by a fine of a maximumamount not exceeding
$500. Penal Code 5 12.23. Class A and B misdemeanorsarepunishableby fine or confinementin jail, or
both (thatis, not by fine only). Id. @ 12.21 - .22.




                                              p.   1455
Ms. LaVonne Garland - Page 5             (DM-277)




                                  SUMMARY

                The $500 maximum fine limitation for class C misdemeanors set
          forth in section 12.23 of the Penal Code does not apply to the
          misdemeanor of unauthorized practice of architecture defined in
          V.T.C.S. article 249a, section 13, which sets punishment as a tine
          ranging from $250 to $1,000. The $500 limitation on the criminal
          jurisdiction of justice courts contained in article 4.11 of the Code of
          Criminal Procedure is void for violation of section 19 of article V of
          the Texas Constitution, which contains no maximum liit on that
          wurt’s jurisdiction over fine-only misdemeanors. Article V, section
           19, does not require legislative implementation; therefore, complaints
          under article 249a may be filed and tried in justice wurt. Letter
           Opinion No. 92-23 (1992) is overruled.




                                                     DAN      MORALES
                                                     Attorney General of Texas

WILL PRYOR
Fist Assistant Attorney General

JORGE VEGA
Deputy Attorney General for Litigation

RBNEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by James B. Pinson
Assistant Attorney General
