              THE     ASTBRNEY              GENERAL
                          OF   TEXAS


                       January26,    1970




Colonel Wilson E. Speir, Director       Opinion No. M- 564
Texas Department of Public Safety
5805 North Lamar                        Rer   Whether misdemeanor
Austin, Texas 78751                           driver's license cases
                                              arising under Article
                                              6687b, V,C.S., and aris-
                                              ing within the geographical
                                              limits of Wichita Falls,
                                              Texas, must be tried in
                                              the Municipal Courts of
Dear Colonel Speir:                           Wichita Falls, Texas.
     Your request for an opinion correctly notes that Senate Bill
39Z1 which creates Municipal Courts of Record for Wichita FalJs
purports to bestow exclusive jurisdiction on such courts over all
misdemeanor cases arising in Wichita Falls under Article 6687b,
Vernon's Civil Statutes. You as4 if a&l such cases must be brought
into these newly created courts.

     1Acts 61st Leg., R,S, 1969, ch. 762, pe 2255.

     'The 61st Legislature also enacted House Bill 1053, (Article
1194A, V.C.S.) as followsx
        "The name 'corporation court' is changed to
     the 'municipal court'* All other statutory
     references to the corporation court shall be
     construed to mean the Municipal Courton
Nevertheless, because of differences in organization, jurisdiction
and power, the Municipal Courts of Record created by Senate Bill
392 are wholly separate from the former corporation courts+ To
preserve the distinction for present purposes, however, this opinion
will continue to designate the former corporation courts as such.




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Colonel Wilson E. Speir, page 2, (M-564 )



     Section Z(a) of Senate Bill 392 defines the jurisdiction
of such courts as follows:
        "Municipal courts in Wichita Falls shall have
    concurrent jurisdiction in all criminal cases
    arising under the charter and ordinances of the
    city and shall also have concurrent jurisdiction
     in all criminal cases arising under the laws of
    the State of Texas and arising within the ter-
    ritorial limits of the city, in which punishment
     is bv fine only, and where the maximum of such
     fine-may not exceed $200. The Municipal Court
    'shall have exclusive original jurisdiction in all
    misdemeanor cases arising under the traffic laws
    of the State of Texas as defined in Chapter 173,
    Acts of the 47th Legislature, Regular Session,
    1941, as amended, and Chapter 421, Acts of the
      0th Leaislature. Reaular Session. 1947. as
    amended where the offense was committed-within
    the corporate limits of the city.* (Emphasis addea.1
     To answer your question, one must bear in mind two factors,
First, courts that are created by the Legislature are known as
                   Corporation courts are statutory courts.
!!ki%Esc:::::s oCounty Courts and Justice of the Peace Courts
are known as s&stitutional courts since they are created by
the Constitut;;i-- Second there are different grade misdemeanors
described in Article 6687b, commonly known as the "Driver's License
Law," Generally, violations are misdemeanors punishable by fine
only not to excede $200,00, (Cfo S44a)o Such offenses would nor-
mally be cognizable concurrently by justice ,or corporation
courts, Cf. Art. VP Sec. 19, Constitution of Texast Art. 1195,
V,C.S,; Art.,4,14, V,C,C.P, However, certain violations are
misdemeanors with possible fines of from $25,00 to $500.00 and
jail terms. (C,f. 9813,341, These latter offenses would normally
fall within county court jurisdiction. Cf. Art. V, Sec. 16,
Constitution of Texas,
     Your question, in effect, thus asks if the Legislature can
lawfully create statutory Municipal Courts of exclusive juris-
diction over these offenses, This question has a long and
erratic judicial history which must be considered in this connection,




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Colonel Wilson E. Speir, page 3, (M-564 )



     Since 1891, the judicial powers of this state have been de-
lineated in Article V, 91 of the Constitution of Texas as follows:
           "1.   Judicial power: courts in which vested
          *Section 1. The judicial power of this State
       shall be vested in one Supreme Court, in Courts
       of Civil Appeals, in a Court of Criminal Appeals,
       in District Courts, in County Courts, in Commission-
       ers Courts, in Courts of Justices of the Peace, and
       in such other courts as may be provided by law.


          'The legislature may establish such other courts
       as it may deem necessary and prescribe the jurrs-
       diction and organization thereof, and may conform
       he jurisdiction of the district and other inferfor 3
       courts thereof." (Emphasis addec.;l
     First attempts to interpret the 1891 amendment resulted in a
schism between the appellate civil courts and the new Court of
Criminal Appeals. The Supreme Court in Harris County vs. Stewart,
91 Tex. 133, 41 S.W. 650 (1897) summarized the thinking of the
civil courts that the effect of the amendment was to place the
subject of judicial jurisdiction at the complete disposal of the
Legislature. The Court of Criminal Appeals, however, motivated
partly by fear of legislative abuse, concluded that the Legis-
lature was nevertheless powerless to create statutory courts with
jurisdiction concurrent with the constitutional state courts,


       3
        Section 3 of the Senate Bill 392 provides:
          "Sect 3. The jurisdiction of all courts
       exercising criminal jurisdiction is conformed
       to the terms and provisions of this Act."




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Colonel Wilson E. Speir, page 4, (M-564 I


Leach vs. State, 36 Tex.Crim. 248, 36 S.W, 471 (1896); Ex Parte
                   573; 44 S.W. 294 (1898): Ex Parte Coombs, 38
%%-~~,T~~l!t~r~~OS.W, 854 (1898) Eventually th C        t of
Criminal Appeals recanted and agried that a stkut%y"%rt     could
oronerlv be aranted jurisdiction concurrentlv with the resular
etaie courts, Ex Pa&e Wilbarger, 41 Tex.Crim. 514, 55 S,W,
968 (1900).
     The two courts were not yet in accord,~however, as to whether
statutory courts.could,be given,exclusive jurisdiction over matters
specified in the Constitution as being within the jurisdiction of
Constitutional Courts, Harris County vs. Stewart, supra,
indicated that statutory courts might be given exclusive juris-
diction, The Wilbarger case, however, hinted that such would be
impermissible,
     This final question was laid to rest in 1933 when the Supreme
Court endorsed the position of the Court of Criminal Appeals. In
Reasoner vs. Reasoner, 122 Tex. 512 58 S,W.Zd 817 (1933) the court
held:
        *NO provision of the Constitution anywhere
     intimates such a withdrawal or neaation of




This conclusion was re-affirmed in 1962 in Lord vs, Clayton, 163
Tex. 62, 352 S,W,Zd 718 (1962). The rationale of these cases
was that the phrase "and may conform the jurisdiction of the district
courts 0 0 oetc" may not be c-d       to mean "deprive the juris-
diction, etco" So construed, Article V would, therefore, violate
the fundamental separation of powers expressed in Article II of
the Constitution. Thus, statutory courts may be given concurrent
jurisdiction over matters normally within the jurisdiction of
constitutional courts. Statutory courts may not be given exclusive
jurisdiction over such matters.




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Colonel Wilson E. Speir, page 5, (M- 564)



     No cases, however, indicate that legislatively bestowed
jurisdiction cannot be withdrawn from one statutory court in
favor of another. The Legislature can dissolve such courts as it
creates, Pierson vs. State, 177 S.W.Zd 975 (Tex.Crim., 1944), and
doubtless can distribute such jurisdiction as it can properly be-
stow in any manner it sees fit. Thus, there is no constitutional
prohibition against statutory courtswith jurisdiction exclusive
of other statutory courts.

     Applying the foregoing analysis, we conclude that S.P,
392 is valid as applied to statutory courts but invalid as
applied to such constitutional courts as justice courts. Thus,
the Act is sufficient to bestow exclusive jurisdiction on the
new Municipal Courts of record in derogation of the jurisdiction
of the Corporation Courts of Wichita Falls. Under the Reasoner
and Clayton cases, however, S.B. 392 is invalid and insufficient
to deprive the appropriate justice courts of their concurrent
jurisdiction.
     Although the Wichita County Court is a constitutional court,
it does not fall within the purview of the Reasoner and Cla ton
cases since constitutional authority exists for legislat6 ve
vestiture of countv rourt jurisdiction. Article V, Section 22
Constitution of Texas provides, in part:
          "22,   Changing jurisdiction of county courts
          "Section 22. The Legislature shall have power,
       by local or general law, to increase, diminish or
       change the civil and criminal jurisdiction of County
       Courts; O . .I
This provision has long been considered as authorizing deprivation
of the constitutional jurisdiction of a County Court. Ginnochio
vs. State, 30 Tex.Crim. 584, 18 S.W. 82 (Tex.Ct.App., 1-l) :King
vs. State, 158 Tex.Crim. 347, 255 S.W.Zd 879 (1953).
     The net effect of Senate Bill 392 is that corporation courts
in Wichita Falls and the county court of Wichita County have been
deprived of original jurisdiction over misdemeanor driver's license
law cases whereas justice courts have not. Consequently, the




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Colonel Wilson E, Speir, page 6, (M-564 )



                                        --. cases arising
answer to your question is that misdemeanor
                                    .             -    ..~under
Article 6687b and within the geographical limits of Wichita
Falls, Texas, must be tried in the newly created Municipal
Courts of Wichita Falls where the possible punishment involved
is a fine of more than $200.00 or a jail term. If the punish-
ment is by fine only, not to excede $200.00, the case must be
brought in either the Municipal Court of Wichita Falls or the
Justice Court. Thus, no misdemeanor driver's license law cases
may be brought into corporation courts or the County Court of
Wichita County.
     Section 45 of Senate Bill 392 plainly reveals that the
Legislature intended primarily to create a court which would
effectively,relieve the county court and the corporation courts
of their heavy case load:
        "Section 45. The fact that the criminal
     dockets of the car oration courts.and count
     courts are crowtises          arising Iid
     cities which existing courts do not have the
     necessary time to handle properly, creates an
     -nergency and an imperative public necessity
     0 e 0* (Emphasis adder.)
No specific mention of justice court jurisdiction is made in
Senate Bill 392, Whatever the legislative intent, justice courts
cannot be deprived of their constitutional jurisdiction by the
Legislature,
                              SUMMARY
        Xisdemeanor driver"s license cases arising
     under Article 6687b, V.CoS., and arising within
     the geographical limits of Wichita Falls, Texas,
     must be tried in either the new Municipal Courts
     or the Justice Court for Wichita Falls where oun-
     ishment is by fine only, not to e?:cced$208.08.
     All other misdemeanors so arising must be tried
     exclusively in the Municipal Courts,
                            8:i
                        Ver'ytruly yours,
                                        +JL--,
                                   I:;;;,
                                      ,/,,I
                                         :/&&A
                                 C MARTIN
                               y General of Texas




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Colonel Wilson E. Speir, page 7, (M-564 )



Prepared by Earl S, Hines
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
Alfred Walker, Co-Chairman
Howard Fender
Glenn Brown
Ivan~Williams
David Longoria
MRADE F. GRIFFIN
Staff Leqal Assistant
NOLA WHITE
First Assistant




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