                             ATTORNEY GENERAL OF TEXAS
                                          GREG       ABBOTT




                                                July 8, 2008



The Honorable James L. Anderson, Jr.                  Opinion No. GA-0642
Aransas County Attorney
301 North Live Oak Street                            Re: Whether the creation of a county court at law
Rockport, Texas 78382                                and the related divestiture of the constitutional
                                                     county court's probate,juvenile, civil, and criminal
                                                     jurisdiction stripped a county judge of his powers
                                                     as "magistrate" (RQ-0669-GA)

Dear Mr. Anderson:

        You tell us that "[i]n 2001 the Legislature of the State of Texas created the Aransas County
Court at Law and removed all civil, probate, juvenile and criminal jurisdiction from the County
Court of Aransas County and vested that jurisdiction in the Aransas County Court at Law."} You
indicate that "[t]he County judge (Judge of the County Court of Aransas County Texas) wishes
to magistrate prisoners in the Aransas County Jail, read them their rights, set bonds and perform
all other duties as a magistrate set out by the Code of Criminal Procedure." Request Letter, supra
note 1; see also TEX. CODE CRIM. PROC. ANN. art. 2.09 (Vernon Supp. 2007) (listing county judges
as magistrates). You seek to understand whether the county judge retains the power to act as a
magistrate in light of the 2001 legislative changes. Request Letter, supra note 1.

I.      Background

        A.    General

         Article V, section 15 ofthe Texas Constitution establishes a "County Court" for each county.
TEX. CONST. art. V, § 15. These courts are commonly referred to as "constitutional county courts"
to distinguish them from county-level courts created by statute. See Tex. Pipe Line Co. v. Hunt, 228
S.W.2d 151, 153 (Tex. 1950) (referring to courts created by article V, section 15 as "constitutional
county courts"). A constitutional county court "has jurisdiction as provided by law" and the county
judge, as the presiding officer, "has judicial functions as provided by law." TEX. CONST. art. V,
§ 16; see also, e.g., TEX. GOV'TCODEANN. §§ 26.045(a) (Vernon Supp. 2007) (giving county court


          lSee Letter from Honorable James L. Anderson, Jr., Aransas County Attorney, to Honorable Greg Abbott,
Attorney General of Texas (Jan. 8, 2008) (on file with the Opinion Committee, also available at http://www
.texasattorneygeneral.gov) [hereinafter Request Letter].
The Honorable James L. Anderson, Jr. - Page 2                  (GA-0642)




exclusive original jurisdiction over certain misdemeanor offenses), 26.046 (Vernon 2004) (giving
county court certain appellate jurisdiction); TEX. CODE CRIM. PROC. ANN. art. 4.07 (Vernon 2005)
(giving county court original jurisdiction over certain misdemeanor offenses).

        Article V, section 1 of the Texas Constitution authorizes the Legislature to "establish such
other courts as it may deem necessary and prescribe the jurisdiction and organization thereof,"
including county-level courts. TEX. CaNST. art. V, § 1; see Regian v. Sowell, 534 S.W.2d 175, 176
(Tex. Civ. App.-Waco 1976, writ refd n.r.e.). Article V, section 1 courts are oftentimes referred
to as "statutory courts." See Regian, 534 S.W.2d at 176 (observing that under article V, section 1
ofthe Texas Constitution, "the Legislature has from time to time created so-called 'statutory' courts
across the State, such as county courts at law, county civil courts, domestic relations courts and
others"). Title 2, subtitle A of the Government Code establishes statutory county courts and
otherwise provides for both constitutional and statutory courts. See, e.g., TEX. GOV'T CODE ANN.
chs. 25 ("Statutory County Courts"), 26 ("Constitutional County Courts") (Vernon 2004 & Supp.
2007).

        "[T]here is a tradition of divesting the constitutional county court[s] of [their] judicial
jurisdiction-eivil and criminal-and placing" that jurisdiction with other courts, such . as the
statutory county courts,2 because of the myriad legislative and administrative duties county judges
have in addition to their judicial duties, such as serving as the presiding officer ofthe commissioners
court. 40 GEORGE E. DIX, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 1.42 (2d ed.
2001); see ide §§ 1.41 ("In large and middle sized counties, the[] statutory courts handle much ofthe
judicial business that the County Judge handles in small counties."), 1.45 ("Part of the movement
to divest constitutional county courts oftheir civil and criminal jurisdiction has been the creation of
various so called 'statutory county courts."'); see also 36 DAVID B. BROOKS, TEXAS PRACTICE:
COUNTY AND SPECIAL DISTRICT LAW § 22.5 (2d ed. 2002) ("The county judge in Texas serves as
the presiding officer of the commissioners court, in addition to being the judge of the county court.
He also performs diverse administrfltive duties in his own name and title ...."). Divestiture has
been accomplished on a county-by-county basis rather than a statewide basis. See 40 GEORGE E.
DIX, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 1.42 (2d ed. 2001). Thus, the
Government Code provisions creating the courts in a particular county must be examined in order
to determine the jurisdiction ofthose courts. See ide We now turn to analyze the county-level courts
of Aransas County.

         B.     County-level Courts of Aransas County

        In 2001, the Legislature passed House Bill 3643 establishing the County Court at Law of
Aransas County ("County Court at Law") and altering the jurisdiction of the Aransas County
constitutional court. See Act of May 22,2001, 77th Leg., R.S., ch. 688, §§ 1-2,2001 Tex. Gen.
Laws 1311, 1311-12 (codified at TEX. GOV'T CODE ANN. §§ 25.0061-.0062,26.104). Section



          2Generally, "[a] statutory county court has jurisdiction over all causes and proceedings, civil and criminal,
original and appellate, prescribed by law for county courts." TEX. Gov'r CODE ANN . § 25 .0003(a) (Vernon Supp. 2007).
The Honorable James L. Anderson, Jr. - Page 3          (GA-0642)




25.0061, Government Code, establishes the County Court at Law. See TEX. GOV'T CODE ANN.
§ 25.0061 (Vernon 2004). It provides: "Aransas County has one statutory county court, the County
Court at Law of Aransas County." Id. The County Court at Law has "jurisdiction provided by
Section 25.0003 [, Government Code,] and other law" as well as concurrent jurisdiction with the
district court in family law cases and "felony cases to conduct arraignments, conduct pretrial
hearings, and accept guilty pleas." Id. § 25.0062(a). Section 26.104, Government Code, provides
the following as to the constitutional court: "The County Court of Aransas County has no probate,
juvenile, civil, or criminal jurisdiction." Id. § 26.104. Thus, the Aransas County constitutional court
was divested of its probate, juvenile, civil, and criminal jurisdiction when the County Court at Law
was created.

II.     Analysis

        You ask the following regarding the 200 1 legislative action as to the Aransas County courts:

                Because the County Judge is enumerated in the Code of Criminal
                Procedure as a "Magistrate" did the enabling legislation creating the
                Aransas County Court at Law, vesting certain powers and jurisdiction
                in it, and divesting certain powers and jurisdiction from the Aransas
                County Court, remove the County Judge's magistrate rights and
                powers granted and mandated under the Code of Criminal Procedure,
                thereby preventing the County Judge of Aransas County from having
                the authority to read prisoners rights, set bonds, issue search warrants
                and perform other duties as set out by the Code of Criminal Procedure
                for magistrates?

Request Letter, supra note 1.

         Article 2.09, Criminal Code of Procedure, lists a county judge as a magistrate within the
meaning of that Code. See TEX. CODE CRIM. PROC. ANN. art. 2.09 (Vernon Supp. 2007) (listing
various officers from the justices of the Supreme Court to the mayors and recorders of incorporated
cities as magistrates). And while a county judge's role as magistrate may grow out of the office of
county judge, courts of this state have clearly distinguished between the two positions. Cf State ex
rei. Holmes v. Salinas, 784 S.W.2d421, 423 (Tex. Crim. App. 1990) (indicating that respondent was
"being sued in his limited capacity as magistrate rather than his general capacity as trial court judge
of a district court"); Tex. Dep 't ofTransp. v. Marquez, 885 S.W.2d 456, 458 (Tex. App.-EI Paso
1994, no writ) (holding that district judge convened court of inquiry acting as magistrate and thus
court of appeals lacked jurisdiction to issue mandamus directing district judge to terminate
proceedings).

        More importantly to the issue at hand, courts in this state have held that the jurisdiction of
a magistrate is not determined by the subject matter jurisdiction of the court upon which the judge
ordinarily sits. See o 'Quinn v. State, 462 S.W.2d 583,588 (Tex. Crim. App. 1970) ("That it was
not the intent ofthe legislature to limit the authority ofthe judge, recorder or mayor to administering
The Honorable James L. Anderson, Jr. - Page 4          (GA-0642)




the oath to complaints charging offenses which the corporation court has jurisdiction to try is made
clear by Art. 2.09 V.A.C.C.P., making the mayors and recorders and the judges of the city courts
... magistrates."); Exparte Knight, 904 S.W.2d 722, 726-27 (Tex. App.-Houston [1st Dist.] 1995,
writ ref d) (concluding that justice court, sitting as a magistrate and not a justice of the peace, can
take a felony complaint and issue a warrant of arrest even though the justice court does not have
jurisdiction over felony cases). Rather, all magistrates of a given county have co-equal magistrate
jurisdiction. See Ex parte Clear, 573 S.W.2d 224,228 (Tex. Crim. App. 1978); see also Tex. Att'y
Gen. Ope Nos. GA-0551 (2007) (discussing ajustice of the peace's jurisdiction over a defendant in
a felony case); MW-581 (1982) (discussing Clear).

         Here, section 26.1 04 of the Government Code addresses the subject matterjurisdiction of the
county court. TEX. GOV'T CODE ANN. § 26.104 (Vernon 2004). It makes no mention ofthe county
judge's duties and powers as a magistrate-a role, as we have previously explained, that is separate
from that as presiding officer ofthe county court. See, e.g., TEX. CODE CRIM. PROC. ANN. arts. 2.10
(Vernon 2005) (setting out general magisterial duties); 6.01-.04 (requiring a magistrate to act to
prevent threatened offenses); 15.03(a) (authorizing a magistrate to issue a warrant of arrest or a
summons in certain circumstances); 15.17 (Vernon Supp. 2007) (setting out a magistrate's duties,
including reading rights, when an arrested person is brought before the magistrate); 18.01 (Vernon
2005) (indicating a magistrate can issue a search warrant). Based on the express language of section
26.104 and the principle set out in 0 'Quinn, Knight, and Clear that the jurisdiction of a magistrate
is distinct from that ofthe underlying court upon which the officer sits, we conclude that the county
judge of Aransas County retains the power to act as a magistrate subsequent to the 2001 legislative
change that divested the Aransas County Court of its probate, juvenile, civil, and criminal
jurisdiction.
The Honorable James L. Anderson, Jr. - Page 5         (GA-0642)



                                       SUMMARY

                      The county judge of the Aransas County Court ("Court"), a
              constitutional court, retains the power to act as a magistrate despite
              the fact that the Court was divested of its probate, juvenile, civil, and
              criminal jurisdiction.




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Chr~sty Drake-Adams
Assistant Attorney General, Opinion Committee
