                                         The Attorney             General of Texas
                                                              December 31, 1982
MARK WHITE
Attorney General


                                        Honorable Steve W. Simmons                    Opinion No. MW-581
Supreme      Court Building
                                        District Attorney
P. 0. Box 12546
Austin.    TX. 78711. 2548              El Paso, Culberson, Hudspeth Counties         Re:   Jurisdiction of county
5121475-2501                            303 City-County Building                      courts at law to consider
Telex    9100374.1367                   El Paso, Texas    79901                       applications   for Writs of
Telecopier     5121475-0266
                                                                                      Habeas   corpus   in  felony
                                                                                      casee, and related matters
1607 Main St.. Suite 1400
Dallas.  TX. 75201.4709                 Dear Mr. Simmons:
2141742J3944
                                             You ask two questions.  First, you ask about the jurisdiction of
4624 Alberta       Ave., Suite    160
                                        a county court at law to consider an application for writ of habeas
El Paso. TX.       79905.2793           corpus where the underlying offense is a felony.     Second, you ask
9151533-3464                            whether a county court at law judge, sitting as a magistrate, has
                                        jurisdiction to review the amount of bail previously set by a justice
                                        of the peace acting as a magistrate, or to review a finding regarding
1220 Dallas Ave., Suite          202
Houston,     TX. 77002.6986
                                        probable cause previously made by a justice of the peace sitting as a
7131650-0666                            magistrate.

                                             By way of illustration, you relate that a justice of the peace,
806 Broadway,        Suite 312
                                        acting in his capacity as a magistrate,      issued a felony warrant
Lubbock.     TX.    79401-3479
8061747.5238
                                        pursuant to a complaint filed in his court.        He also set bail.
                                        Following the arrest of the accused, an application for writ of habeas
                                        corpus was filed by the accused in the county court at law.        You
4309 N. Tenth, Suite E                  question whether   the county court at law could properly assume
McAllen,     TX. 78501-1685             jurisdiction of such a petitioner's application for writ of habeas
5121662.4547
                                        corpus.   You also question the power of judges of county courts at
                                        law, sitting as magistrates, to review or modify the orders of other
200 Main Plaza, suite 400               magistrates.
San Antonio,  TX. 78205.2797
5121225-4191
                                             When county court at law judges sit in an ordinary judicial
                                        capacity there can be no question about their lack of authority to
An Equal       Opportunity/             issue writs of habeas corpus in felony cases.         County courts at law
Affirmative      Action     Employer    are    essentially    constitutional     county    courts    with     limited
                                        jurisdiction, Texas Pipe Line Company V. Hunt, 228 S.W.Zd 151, 153
                                        (Tex. 1950), and such courts in El Paso have no jurisdiction of felony
                                        offenses.     V.T.C.S.,    arts.    1970-128,    1970-141.1,     1970-141.2,
                                        1970-141.3,    1970-141.4.    Article   V.   section    16  of    the   Texas
                                        constitution, as amended September 1, 1981, reads in pertinent part:




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Honorable Steve W. Simmons - Page 2   (MW-581)




             The   County   Court    shall   have   original
         jurisdiction    of  all   misdemeanors   of   which
         exclusive original jurisdiction is not given to
         the Justices Court....   They shall have appellate
         jurisdiction in cases civil and criminal of which
         Justices Courts have original jurisdiction....   In
         all appeals from Justices Courts there shall be a
         trial de nova in the County Court.... [t]he County
         Court, or judge thereof, shall have power to issue
         writs   of injunctions,   mandamus  and all writs
         necessarv to the enforcement of the iurisdiction
                                                 ”



         of said Court, and to issue writs of habeas corpus
         in cases where the offense charged is within the
         jurisdiction of the County Court, or any other
         Court or tribunal     inferior to said Court....
          (Emphasis added).

The county courts at law of El Paso County have no jurisdiction to
consider an application for writ of habeas corpus where the underlying
offense is a felony.    See Ex parte Sullivan, 534 S.W.2d 140 (Tex.
Grim. App. 1976).

     The jurisdiction  of county court at law judges sitting as
magistrates is another matter. Article 2.09 of the Code of Criminal
Procedure provides:

             Each of the following officers is a magistrate
         within the meaning of this Code: The justices of
         the Supreme Court, the judges of the Court of
         Criminal Appeals, the justices of the Courts of
         Appeals, the judges of the District Court, the
         county judges, the judges of the county courts at
         law, judges of the county criminal courts, the
         lustices of the peace, the mayors and recorders
         and   the judges   of   the municipal    courts   of
         incorporated cities or towns.   (Emphasis added).

The jurisdiction of a magistrate is not determined by the jurisdiction
of the court upon which he ordinarily sits. All the magistrates of a
given county have co-equal jurisdiction as magistrates      and their
functions as magistrates are the same whether they ordinarily sit as
justices of the peace or as justices of the supreme court of the
state. Ex parte Clear, 573 S.W.2d 224, 2.28 (Tex. Crim. App. 1978).

     In Ex parte Clear, e,     the Court of Criminal Appeals decided
that a criminal "offense" is the equivalent of a criminal "case" for
purposes of section 4.16 of the Code of Criminal Procedure, which
provides that the court in which a criminal complaint is first filed
shall retain jurisdiction   of it when    two or more courts have




                                 p. 2153
.   -



        Honorable Steve W. Simmons - Page 3      (MW-581)




        concurrent jurisdiction of the offense.   Although neither the justice
        court nor the county court at law, sitting as trial courts, have
        jurisdiction of felony cases, they have concurrent jurisdiction s
        magistrates over such cases prior to indictment; the Court of Criminal
        Appeals held in Clear that section 4.16 is applicable         to such
        situations.  Clear, supra at 229.

             Applying that provision to the illustration given above, when the
        justice of the peace, acting in his capacity as a magistrate, obtained
        jurisdiction over the subject matter of the complaint and over the
        accused himself, sole jurisdiction over the complaint attached.  Until
        such time as the complaint might be dismissed by the justice sitting
        as a magistrate, or superseded by the action of the grand jury, or
        until the accused waives indictment in accordance with section 1.141
        of the Code of Criminal Procedure, no other magistrate could obtain
        jurisdiction of the matter.  Ex parte Clear, a.

             It follows that a county court at law judge, sitting as a
        magistrate, does not have jurisdiction to review orders about the
        amount of bail or findings regarding probable cause made by another
        magistrate who has earlier acquired jurisdiction of the case.

                                       SUMMARY

                     County courts at law in El Paso County have no
                  jurisdiction to consider applications for writs of
                  habeas corpus when the underlying offense is a
                  felony, nor do judges of such courts, when sitting
                  as magistrates, have jurisdiction to review or
                  modify either the amount of bail set or a finding
                  of probable cause made by a justice of the peace
                  acting as magistrate in a case over which the
                  justice has acquired jurisdiction as a magistrate.




                                                  Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        RICHARD E. GRAY III
        Executive Assistant Attorney General

        Prepared by Bruce Youngblood
        Assistant Attorney General




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Honorable Steve W. Simmons - Page 4   (m-581)




APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Charles A. Palmer
Bruce Youngblood




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