                              ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT




                                                  May 7,2012



The Honorable Jeri Yenne                               Opinion No. GA-0923
Brazoria County Criminal District Attorney
111 East Locust, Suite 408A                            Re: Identity of the proper prosecutorial entity to
Angleton, Texas 77515                                  prosecute violations of criminal regulations enacted
                                                       by the Commodore Cove Improvement District
                                                       (RQ-1007-GA)

Dear Ms. Yenne:

        You ask who is the proper prosecuting entity to prosecute violations of criminal regulations
enacted by the Commodore Cove Improvement District ("the District"). 1 You inform us that the
District was created as a conservation and reclamation district under Article XVI, section 59 of the
Texas Constitution, with the powers and duties of a water control and improvement district under
chapters 49 and 51 of the Texas Water Code. Request Letter at 2. You further state that the district
has adopted criminal regulations providing for punishment by fine of up to $500 and that citations
have been issued and filed in justice court. /d. at 1, 3.

         Chapter 51 of the Water Code authorizes a water control and improvement district to adopt
and enforce certain reasonable rules and regulations, which the courts are to recognize as ifthey were
penal ordinances of a city. TEX. WATER CODE ANN. §§ 51.122, .127, .128 (West 2008). An offense
under chapter 51 is a Class C misdemeanor. [d. § 51.241. Chapter 49 of the Water Code authorizes
a district to "contract for or employ its own peace officers with power to make arrests when
necessary to prevent or abate the commission of ... any offense against the rules of the district when
the offense or threatened offense occurs on any land, water, or easement owned or controlled by the
district." !d. § 49.216(a)(l). However, neither chapter 49 nor chapter 51 identifies the person or
entity who is to prosecute chapter 51 offenses.

        Jurisdiction for a Class C misdemeanor created by city ordinance generally lies in both justice
courts and municipal courts. See TEX. CODECRIM. PROC. ANN. arts. 4.11 (West Supp. 2011) (justice
court jurisdiction), 4.14 (municipal court jurisdiction); TEX. GOV'T CODE ANN. § 29.003 (West
Supp. 2011) (municipal court jurisdiction). And chapter 45 of the Code of Criminal Procedure



         ISee Letter from Honorable Jeri Yenne, Brazoria Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex.
Att'y Gen. at 1, 3-4 (Oct. 17, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").
The Honorable Jeri Yenne - Page 2                     (GA-0923)




identifies the persons who are authorized to conduct prosecutions injustice courts and in municipal
courts. See TEX. CODECRIM.PROC. ANN. arts.45.001-.203 (West 2006 & Supp. 2011). In ajustice
court, "[a]ll prosecutions ... shall be conducted by the county or district attorney or a deputy county
or district attorney." [d. art. 45.101(a) (West 2006). In a municipal court, prosecutions are to be
conducted by the city attorney or a deputy city attorney of the municipality, although the county
attorney may, if the county attorney so desires, represent the state in such prosecutions. [d. art.
45.201; see also TEX. GOV'T CODE ANN. § 44. 120(b) (West 2004) (providing that the powers and
duties of the Brazoria County Criminal District Attorney include those of a county attorney).2
Consequently, the proper prosecutorial entity to prosecute a violation of a District ordinance under
chapter 51 of the Water Code will generally depend on whether the citation or complaint has been
filed in a justice court or a municipal court.




         2We do not address the court's authority to appoint a prosecutor under specific circumstances. See TEX. CODE
CRIM. PROC. ANN. art. 45.031 (West 2006) (court's authority to appoint an attorney pro tern) .
The Honorable Jeri Yenne - Page 3           (GA-0923)




                                      SUMMARY

                      The proper prosecutorial entity to prosecute a violation of a
              water control and improvement district ordinance under chapter 51 of
              the Water Code will generally depend on the court in which the
              citation or complaint is filed. Prosecutions of such violations in
              justice court are to be conducted by the county attorney, district
              attorney, or deputy county attorney or district attorney. Prosecutions
              of such violations in municipal court are generally to be conducted by
              the city attorney or deputy city attorney.




DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
