                                 ATTORNEY GENERAL OF TEXAS
                                              GREG        ABBOTT




                                                    May $2003



The Honorable David Aken                                        Opinion No. GA-0067
County Attorney
San Patricia County Courthouse                                  Re:     Authority of a municipal judge to
Room 102                                                        examine the state’s witnesses if the state is not
Sinton, Texas 78387                                             represented by counsel when the case is called
                                                                for trial (RQ-0628-JC)


Dear Mr. Aken:

         You ask whether a municipal judge may examine the state’s witnesses if the state is not
represented by counsel when the case is called for trial.

        The question arises in the context of a dispute between a city attorney and a former municipal
judge in Aransas Pass. The city attorney contends that a municipal judge may proceed to trial and
 examine witnesses in the absence of an attorney for the state. According to your brief, some
municipal courts have continued a practice developed under former article 45.36 of the Texas Code
of Criminal Procedure “to facilitate a trial without a prosecutor.“’ Former article 45.36 provided:
“The justice shall examine the witnesses if the State is not represented by counsel.” See Act of May
27,1965,59th   Leg., R.S., ch. 722, art. 45.36,1965 Tex. Gen. Laws 3 17,527, renumbered as article
45.031 and amended by Act of May 30,1999,76th Leg., R.S., ch. 1545,s 29,1999 Tex. Gen. Laws
53 14,53 19-20. Because the legislature omitted the phrase “The justice shall examine the witnesses”
from the Code in 1999, the former municipal judge argues that the practice is now forbidden.2

         The Code of Criminal Procedure designates who may prosecute cases in municipal courts.
The city attorney has the right and duty to prosecute in these courts, whereas the county attorney has
the right, but not the duty. See TEX.CODE CRIM.PROC.ANN. art. 45.201(a) (Vernon Supp. 2003);
Aguirre v. State, 22 S.W.3d 463,468-69 (Tex. Crim. App. 1999) (en bane). When a state attorney



         ‘Brief from Honorable David Aken, San Patricia County Attorney, to Honorable    John Corny-n, Texas Attorney
General at 1 (Nov. 1, 2002) (on file with Opinion Committee) [hereinafter Aken Briefl.

          *We assume for purposes of this opinion that the term “justice” in former article 45.36 included a municipal
judge. CJ: Vallejo v. State, 408 S.W.2d 113, 114 (Tex. Crim. App. 1966) (holding that article 45.27 of 1965 Code of
 Criminal Procedure, concerning informality of “justice court” complaints, was also applicable to corporation court
complaints).   See Act of May 3 1, 1969, 61 st Leg., R.S., ch. 547, 1969 Tex. Gen. Laws 1689 (changing name of
corporation courts to municipal courts).
The Honorable David Aken - Page 2                (GA-0067)




is unavailable for certain reasons, a municipal court judge may appoint an attorney pro tern. See
TEX.CODE CRIM. PROC.ANN. arts. 2.07(a), (g), 45.031(2) (Vernon 1977 & Supp. 2003). But a
municipal judge may not serve as judge and prosecutor in the same case. See id. art. 30.01 (Vernon
Supp. 2003) (“No judge or justice of the peace shall sit in any case . . . where he has been counsel
for the State or the accused . . . .“); see also Galvan v. State, 988 S.W.2d 291, 297 (Tex.
App.-Texarkana     1999, pet. ref’d) (holding that no judge may serve as judge and prosecutor at the
same time).

         Former article 45.36 required a justice of the peace to examine witnesses when the state was
not represented by counsel, even though article 30.01 forbade a justice from serving as justice and
prosecutor in the same case. In 197 1, this office analyzed the extent of a justice’s authority under
former article 45.36. See Tex. Att’y Gen. Op. No. M-776 (197 1). This office determined that article
45.36 did not authorize a justice to present the state’s case or otherwise represent the state’s interest
in any case before the justice. See id. at 3. The opinion reasoned that while a justice could ask
questions “to make an intelligent ruling or to make clear certain features of the testimony,” that
authority fell “far short of ‘presentation of’ the State’s case.” Id. at 2. The opinion concluded that
the court had a duty to examine witnesses in discharge of its judicial role without becoming a
prosecutor in the case:

                [Former article 45.361 merely imposes upon the Justice of the Peace,
                in the interest of justice, the duty to examine the witnesses if the State
                or the defendant is not represented by counsel. The statute does not
                imply that the Justice of the Peace shall have the authority to
                undertake the representation of the State’s interest.

Id. at 2-3. Thus, the opinion suggested a procedure similar to the practice you describe in your brief
as a “trial without a prosecutor.” See Aken Brief, supra note 1, at 1.

         As your brief observes, however, the legislature substantially revised the language of former
article 45.36 in 1999. The 1999 revisions renumbered article 45.36 as article 45.03 1 and omitted its
express directive that justices examine witnesses in the state counsel’s absence:

                Art. 45.031 [+536]. COUNSEL FOR STATE NOT PRESENT
                [WS            E&!imwB         ZY 7YffeWI]. zf [!El%+BkL SM
                      .   l-
                               .
                          llb m3        ifl the state [%I       is not represented by
                counsel when the case is called for trial, the justice or judge may:

                                (I) postpone the trial to a date certain;

                                (2) appoint an attorney pro tern as provided
                        this code to represent the state; or

                                (3) proceed to trial.
The Honorable David Aken - Page 3                 (GA-0067)




Act of May 30,1999,76th Leg., R.S., ch. 1545, $29,1999 Tex. Gen. Laws 53 14,5319-20 (italicized
text and strikeouts in original, indicating additions and deletions, respectively).

        Your brief presents two possible constructions of the 1999 legislative changes. First, you
suggest that because the Code of Criminal Procedure does not expressly prohibit the practice, a
municipal judge may try a case without a state attorney and ask the state’s witnesses questions to
allow the court “to make intelligent rulings.” Aken Brief, supra note 1, at 2-3. Alternatively, you
suggest that the 1999 amendments prohibit a municipal court from questioning witnesses, and if that
is the case, under article 45.032, a court cannot proceed to trial without a state attorney except to
direct a verdict for the defendant. Id. at 2. Article 45.032 provides:

                         If, upon the trial of a case in a justice or municipal court, the
                state fails to prove a prima facie case of the offense alleged in the
                complaint, the defendant is entitled to a directed verdict of “not
                guilty.”

TEX.CODE Cm.        PROC.ANN. art. 45.032 (Vernon Sup. 2003).

         The mere fact that the legislature omitted from article 45.03 1 the prior requirement that a
justice examine witnesses in the state attorney’s absence does not definitively reveal an intent to
forbid the practice. The article now provides that when the state is not represented by counsel, a
court has the option of proceeding to trial. See id. art. 45.03 l(3). While article 45.03 1 does not
mandate the outcome should a municipal court choose to proceed to trial without a prosecutor, the
 immediately following article, article 45.032, requires a court to direct a verdict if “the state fails to
prove a prima facie case.” Id. art. 45.032. Consequently, the legislature must have understood that
the 1999 amendments eliminated the only statutory basis for a court to examine the state’s witnesses
 in that circumstance. That authority, if it exists, must now be found elsewhere.

         The Texas Rules of Evidence do not authorize a municipal or justice court to call and
examine witnesses when a state attorney is not present. To the contrary, Texas is one of the few
states that has not adopted a rule comparable to Federal Rule of Evidence 614, which permits a
federal court to call and examine witnesses on its own motion. See Morrison v. State, 845 S.W.2d
882, 885-86 n.10 (Tex. Crim. App. 1992) (en bane); see also FED.R. EVID.614.

         Nor does the common law provide support for a municipal or justice court’s authority to call
and examine witnesses when a state attorney is not present at trial. While they have not answered
the precise question presented here, Texas courts have regularly disapproved of judges examining
witnesses as a general practice. See e.g., Morrison, 845 S.W.2d at 887 n.lO; Galvan, 988 S.W.2d
at 297; Moreno v. State, 900 S.W.2d 357,359 (Tex. App.-Texarkana           1995, no pet.). One court has
noted that Texas is “second to none” in its opposition to trial courts’ examination of witnesses during
a jury trial. Galvan, 988 S.W.2d at 297. The concern is most acute in a jury trial because of the
danger that a court’s questions could influence a jury’s decision. See Morrison, 845 S.W.2d at 887
n.lO. Also, whether trial is to a jury or to the court, when a court examines witnesses it risks
“becom[ing] an advocate in the adversarial process and los[ing] the neutral and detached role
The Honorable David Aken - Page 4                 (GA-0067)




required for the fact finder and the judge.” Moreno, 900 S.W.2d at 359. Courts in Texas have but
limited authority “to question a witness when seeking information only, to clarify a point, or to get
the witness to repeat something that the judge could not hear.” Id. That authority does not go so far
as to permit a court to call and examine the state’s witnesses at a trial without an attorney for the
state.

        The 1999 amendments eliminated the only mechanism in the Texas Code of Criminal
Procedure allowing examination of witnesses at a trial without state counsel. A standard reference
for municipal court judges observes that a court’s options are limited under articles 45.031 and
45.032:

                If the prosecutor is not present at trial - both bench and jury - the
                court may: (1) postpone the trial to a date certain; (2) appoint an
                attorney pro-tern (see Art. 2.07, C.C.P.); or (3) proceed to trial. Art.
                45.03 1, C.C.P. If the judge opts to proceed to trial, the state’s failure
                to present a prima facie case of the offense alleged in the complaint
                entitles the defendant to a directed verdict of “not guilty.” Art.
                45.032, C.C.P. In this instance, state witnesses, such as a peace
                officer, may be present at the trial but until called to testify for the
                state by the prosecutor, the witness would not testify.

TEXAS MIJNICIPAL
               COURTS EDUCATIONCENTER, BENCH BOOK 8-l (4th ed. 2001).3 We cannot
categorically state that a judge who proceeds to trial without a prosecutor inevitably must render a
directed verdict. It is impossible to anticipate all potential circumstances that might bear on the
analysis. For example, a defendant could insist on presenting evidence even though the state has not
presented a case. Nevertheless, a municipal judge is not authorized to conduct “a trial without a
prosecutor” by calling and examining the state’s witnesses.




        3AvaiZabZe at   http:Nwww.tmcec.com/benchbook4.html.
The Honorable David Aken - Page 5             (GA-0067)




                                       SUMMARY

                       A municipal judge does not have the authority to examine the
               state’s witnesses if the state is not represented by counsel when the
               case is called for trial.

                                              Very truly yours,




                                                           neral of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
