The Honorable W. G. Wood.s,            Jr.                  Opinion No.      H- 213
District Attorney
75th Judicial District                                      Re:. Jurisdiction over the
P. 0. Box 431                                               offense of homicide by vehicle.
Liberty,  Texas   77~575

Dear    Mr.   Woods:

       You have asked our opinion on two questions                   which are:

                       “1. Does the District Court have any jurisdiction
                  to try an offense known as ‘Homicide by Vehicle’ which
                  is described   in Vernon’s Ann. Civ. St. Art. 6701d, Sec.
                  50A?

                       “2.  If your answer is in the negative, do the County
                  Courts or County Courts at Law have exclusive jurisdiction
                  of said offense? I:

       Vernon’s     Texas   Civil Statutes,       Article   6701d,    5 50A provides:

                        “(a) Whoever shall unlawfully and unintentionally
                  (with a conscious  disregard   for the rights of others)
                  cause the death of another person while engaged in the
                  violation of any State law br municipal ordinance applying
                  to the operation or use of a vehicle or streetcar    or to
                  the regulation of traffic shall be guilty of homicide when
                  such violation is the proximate    cause of said death.

                       ‘l(b) Any person convicted of homicide by vehicle
                  shall be fined not less than Five Hundred Dollars ($500)
                  nor more than Two Thousand Dollars ($2,000),         or shall
                  be imprisoned    in the county jail not less than three (3)




                                             p.   996
  The Honorable      W.   G.   Woods,   Jr.‘;page      2   (H-213)




              months nor more than one (1) year, or may be so
              fined and so imprisoned; provided,. however,  that such
              person may be tried only upon indictment bv a grand
              jury and may be tried only in the county where the
              violation occurred. ‘I

     This article is not expressly  repealed by the new Penal Code, Acts 1973,
ch. 399, p. 991, Sec. 3; nor do we believe it is repealed by implication.
Compare Vernon’s     Texas Penal Code, $ $19. 05 and 19. 07, but see Cooper
v. State, 8 S. W. 654 (Tex.   Ct. App. 1888).

       Vernon’s     Texas Penal Code, § 12; 02, provides that II[ 01 ffenses are
 designated as felonies or misdemeanors.        ” A felony is defined as “an offense
 so designated by law or punishable by death or confinement in a penitentiary,           ”
 § 1. 07 ( a) (14), Vernon’s  Texas Penal Code, and a misdemeanor         is “an offense
 so designated by law or punishable by fine, by confinement        in jail, or by both
 fine and confinement in jail. ” Vernon’s      Texas Penal Code, 5 1. 07 (a)(21).

      As the offense of homicide by vehicle is punishable by confinement                         in the
county jail rather than the penitentiary, it is clearly a misdemeanor.

      Vernon’s     Texas~ Code of Criminal          Procedure,       Article   4. 05 provides:

                         “District courts and criminal district courts
                 shall have original jurisdiction   in criminal cases of the
                 grade of felony, and of all misdemeanors      involving
                 official misconduct.    ”

See also, Texas Constitution,     Article 5, Section 8. Official misconduct     involves
 “unlawful behavior in relation to the duties of . . . office, willful in its character
 ~ .   and includes any willful or corrupt failure,  refusal or neglect of an officer
to perform any duty enjoined on him by law. ” Vernon’s        Texas Civil Stautes,
 Art. 5973; 5 39. 01, Vernon’s   Texas Penal Code: Robinson v. State, 470 S. W. 2d
 697 (Tex. Grim. 1971); Craig v. State, 19 S. W. 504 (Tex. Ct. App. 1892).         As
homicide by vehicle is neither a felony nor official misconduct,      the district
court has no jurisdiction  to try the offense.




                                           p. 997
         .-   _.,




                    The Honorable      W.   G. Woods,    Jr.,      page 3 (H-213)




                        Vernon’s     Texas    Code of Criminal        Procedure,    Art.   4.07   provides:

                                          “The oounty courts shall have original jurisdiction
                                   of all misdemeanors    of which exclusive  original juris-
                                   diction is not given to the just&court,   and when the
                                   fine to be imposed shall exceed two hundred dollars. ”

                    Homicide by vehicle is a misdemeanor,      exclusive   original jurisdiction  is not
                    given to thejustice court, and the fine which can be imposed is more than two
                    hundred dollars; therefore,  exclusive  original jurisdiction   to try the offense
                    lies in the county court, and where appropriate,,    the county court at law.

                         Since     the offense may be tried only on indictment,   the district court
                    will have    first contact with a case involving homicide by vehicle,     but after
                    receiving     the indictment it should transfer th,e case to the appropriate    county
                    court for     trial.   Article 21.26, Vernon’
                                                                s  Texas   Code of Criminal    Procedure.

                                                                SUMMARY

                                   The county court has exclusive jurisdiction to try the
                         offense of homicide by vehicle as defined in Vernon’s    Texas Civil
                         Statutes,   Article 6701d, § 50A.

     ,
..


                                                                            Attorney   General     of. Texas




                    DAVID M. KENDALL,           Chairman
                    Opinion Committee




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