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                      The Attorney              General                      of Texas
                                        December     19,        1978

JOHN L. HILL
Attorney General


                   Honorable Maurice S. Pipkin                               Opinion No. H- 1294
                   Executive Director
                   State Commission on Judicial Conduct                      Re: Authority      of   municipal
                   120 Supreme Court Bldg.                                   judges and justices of peace to
                   Austin, Texas 767B                                        change moving traffic violation
                                                                             to nonmoving violation.

                   Dear Mr. Pipkin:

                          You request our opinion concerning the authority of municipal court
                   judges and justices of the peace in traffic cases. You ask whether a judge
                   may dismiss a moving violation charge in exchange for a plea of guilty to a
                   nonmoving violation which is not contained in the complaint, is not a lesser
                   included offense and bears, no factual relationship to the defendant’s conduct.

                         In order for a justice of the peace or municipal judge to act in a
                   criminal case, there must be a written sworn complaint charging that the
                   accused committed a particular offense against the laws of the state. Code
                   Crim. Proc. arts. 45.01; 45.16; 45.17; 15.04; 15.05.       The purpose of the
                   complaint in a corporation court is to commence the ~proceedings and thereby
                   confer jurisdiction upqn the court. Bass v. State, 427 S.W.2d 624, 626 (Tex.
                   Crim. App. 1966). Absent a complaint, a judgment attempted to be entered
                   on a plea is void. Bragg v. State, 6 S.W.2d 365 (Tex. Crim. App. 1926). Harris
                   County v. Stewart, 41 S.W. 650 (Tex. 1697). It is essential that the corn-
                   be sworn; otherwise the judgment is void. Ex pa rte Boxeman, 313 S.W.2d 300
                   (Tex. Crim. App. 1956). We note that if the original complaint charging a
                   person is falsified, the person falsely altering it could be guilty of an offense
                   under Penal Code section 37.10, Tampering with Governmental Record. See
                   also Penal Code S 37.03, Aggravated             Perjury; and S 39.02, Oftic=
                   ?.&ession.

                         While most rights and procedural      matters    may be waived by a
                   defendant, jurisdictional matters may not be waived. Casies Y. State. SO3  .--.--   .   -_-_-,   ___


                   S.W.2d 262, 265 (Tex. Crim. App. 1973)t Utsman Y. State. i 165 S.W.2d 573 (Tex.
                                                           I,    ---...-.-      ..
                                                                                     __-__,


                   Crim. App. 1972).

                         A variance between the judgment of conviction and the offense charged
                   in the pleading is fatal to the court’s jurisdiction or power, and a defendant’s
                   plea of guilty is irrelevant.  It is a fundamental jurisdictional principle that
Honorable Maurice 5. Pipkin     -   Page 2 (R-1294)



the state’s pleadi     must support the Judgment. Martina v. State, 494 S.W.2d 162
(Tex. Crim. App.T 973) (charge of shoplifting does not support conviction on guilty
plea for theft)i Butler v. State, 462 S.W.td 596 (Tax. Crim. App. 1971) (charge of
possession of beer does not support conviction on plea of guilty to unlawful sale);
McCafferty     v. State, 395 S.W.Pd 36 (Tex. Crim. App. 1965) (complaint             of
aggravated assault on policeman does not support conviction on plea of guilty to
DUD; v                    391 S.W.2d 61 (Tex. Crim. App. 1965) (charge of injuring
personal property does not support conviction on plea of guilty to unlawfully
carrying pistol); Acosta v. State, 365 S.W.2d 394 (Tex. Crim. App. 1965) (complaint
of possession of beer for sale does not support conviction on plea of guilty for
unlawful sale); see Carrillo v. State, 356 S.W.2d 635 (Tex. Crim. App. 1962)
(indictment for robbery does not support conviction on plea of guilt to theft from
person); Rx parte Dies, 272 S.W.2d 373 (Tex. Crim. App. 1954) r indictment for
robbery does not support conviction on plea of guilty to theft from person, reduced
at prosecutor’s request); Van Andale v. State, 196 S.W.2d 270 (Tex. Crim. App.
1946) findictment for robbery   does not support conviction on plea of guilty to theft
from person, court without furlsdiction to try); see also Houston v. State,, 556
S.W.2d 345, 347 (Tex. Crim. App. 1977) fnln the absence of jurisdiction,           the
judgment of conviction was a nullity. . . . 3, Huntsman v. State, 12 Tex. Ct. App.
619, 633 0662) (nIhe law condemns no one until the matter has been duly charged
against him.?.

       Accordingly we believe that a justice     of the peace or municipal judge is not
authorized   to dismiss a moving violation       in return for a plea of guilty to an
unrelated, nonmoving violation.

                                    SUMMARY

            A justice of the peace or municipal court judge has no
            authority or power to change a complaint charging a moving
            violation to a nonmoving violation, and such judgment on an
            offense not charged would be void.

                                           Very truly yours,




                                                 torney General of Texas

APPROVED:




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        Honorable Maurice 5. Pipkin   -   Page 3   (H-1294)




        Opinion Committee

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