                                    January     20,   197 5
1

    The Honorable   Gus L. Lanier                         Opinion   No.   H-   500
    County Attorney
7
    Walker County                                         Re: Propriety   of filing county
1
    P. 0. Box 425                                         court misdemeanor       cases in
    Huntsville,  Texas  77340                             a justice of the peace court.

    Dear   Mr.   Lanier:

             You have asked our opinion concerning      the propriety  of filing
    complaints   alleging offenses within the jurisdiction   of a county court in
    a justice of the peace court, specifically  requesting    answers to the
    following questions:

                      1. May complaints for Class A and Class             B misdemeanors
                      be made before a Justice of the Peace?

                      2. May the Justice of the Peace before whom the subject
                      complaints   are made, docket said complaints  and issue
                      warrants   of arrest based on said complaints, when the
                      defendant is not then in custody?

                      3. May the Justice of the Peace admit the persons
                      arrested to bail on said complaints for Class A and Class
                      B misdemeanors?

                      4. May the Justice of the Peace before whom such
                      complaints   are made and docketed thereafter    transfer
                      said complaints,   warrants of arrest,  if any, and bonds
                      to the County Court where said complaints     and informa-
                      tions, timely presented thereon by the County Attorney,
                      are simultaneously   filed, along with the warrants of
                      arrest,  if any, and bonds?




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The Honorable     Gus L.         Lanier   page 2    (H-500)




        Class A and Class B misdemeanors,       which are so classified   by
section 12.03,   Penal Code, are offenses which lie within the jurisdiction
of the county courts to try and decide.    Such offenses cannot be disposed
of on the merits in a justice court.    Tex. Const. art. 5, sets.   16, 19;
Code Crim.     Proc.  arts. 4.07, 4.11.

         However,   a justice of the peace, in addition to having criminal
and civil judicial duties imposed by the Constitution and laws of Texas,
is a magistrate.    Code Crim.    Proc.  art. 2.09.   As such, he is required
to perform   the duties of a magistrate   as set out in article 2.10, Code of
Criminal Procedure:

                      It is the duty of every magistrate    to preserve
                  the peace within his jurisdiction    by the use of all
                  lawful means; to issue all process     intended to aid
                  in preventing and suppressing     crime;   to cause the
                  arrest of offenders   by the use of lawful means in
                  order that they may be brought to punishment.
                  (Emphasis    added).

        All magistrates          are empowered   to issue       warrants  of arrest under
the authority of article         15.03, Code of Criminal        Procedure   which reads in
part:

                      (a) A magistrate          may issue     a warrant   of arrest   or
                  a summons:

                      . .    .    .


                      2, When any person shall make oath before the
                  magistrate  that another has committed some offense
                  against the laws of the State . . . .

        Article   15.04     of the Code further         provides:

                      The affidavit made before the magistrate     or district
                  or county attorney is called a “complaint”   if it charges
                  the commission    of an offense.




                                           p.    2251
The Honorable    Gus L.   Lanier    page 3       (H-500)




         It is clear that any and all offenses defined by the criminal laws
,of Texas,   felonies and misdemeanors     of whatever classification,  may
 be made known to any magistrate,      including a justice of the peace, by
 complaint and that any magistrate    can issue a warrant of arrest based
 on such complaint.

         Your first two questions are, accordingly,     answered in the
affirmative  --complaints   charging the commission      of Class A and Class
B misdemeanors      may be made before a justice of the peace, and if the
complaint discloses    such an offense,  the justice may accept and docket
the complaint and issue a warrant of arrest      (or a summons as an alternative
to the warrant).    Code Crim.   Proc.  arts.  2.10, 15.03,   45.13.

        Your    third question concerns   the authority of a justice of the peace
to admit persons to bail.      Once an arrest has been made pursuant to the
warrant,    “the person making the arrest shall without unnecessary         delay
take the person arrested      or have him taken before some magistrate        of the
county where the accused was arrested.       I’ Code Crim.    Proc.  art. 15.17.
At this appearance,     the magistrate   must advise the person arrested      as to
“accusation    against him and of any affidavit filed” with such accusation,
advise the defendant of various rights,     and “admit the person arrested       to
bail if allowed by law. ” (Emphasis      added).   Code Grim. Proc.     art. 15.17.

        Acting in his capacity as a magistrate,     the justice of the peace
may, “by law, ” release    the arrested   person upon the giving of proper
bail.  Code Crim.   Proc.   arts.  17.04, 17. 25 and 17. 29.   (And see articles
17.08 et seq. of the Code for the requisites    of a bail bond).   The justice
of the peace may alternatively    release the defendant on his personal bond.
Code Crim.    Proc.  art. 17.03.

        Your  third question is, therefore,     answered  “Yes. ” A justice of
the peace before whom an arrested       defendant is brought may release the
defendant to bail in any case,   including   those cases in which a Class A or
Class B misdemeanor      is charged.

       Your fourth question deals with the transfer    of Class A and Class
B misdemeanor    cases to the county court for ultimate hearing and determina-
tion. The filing of complaints  in the justice court charging misdemeanors
over which the county court has jurisdiction   with a subsequent transfer  to the




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               The Honorable    Gus L.   Lanier      page 4       (H-500)




              county court finds judicial approval in Duncan v. State, 279 S. W. 457
              (Tex. Crim.   App. 1926), Gentry v. State, 137 S. W. 696 (Tex. Grim.
              App. 1911), Ex parte Holcomb,    131 S. W. 604 (Tex. Crim.  App. 1910);
              and Lindley v. State, 123 S. W. 141 (Tex. Crim. App. 1909).

                       The precise question       was considered      in Attorney   General   Opinion
              V-946   (1949), which held:

                               [I]t is our opinion that the Justice of the Peace
                               may accept the complaint in your fadual situation,       issue
                               a warrant,   and require bail.     But all papers in the case
                               should be forwarded      to the County Clerk for proper
                               action.   Moreover,     the County Attorney should prepare
                               an information,    if the Justice Court complaint is other-
                               wise in proper form,      and proceed to trial in the County
                               Court,   said Court having jurisdiction    of the offense of
                               driving while intoxicated.

                       An earlier opinion seems to have held to the contrary.             Attorney
              General Opinion O-6742        (1945).   However,    the opinion is unclear: it
              makes no reference       to the authority of a justice of the peace as a magistrate
              and was not cited in Attorney        General Opinion V-946     (1949).   If the earlier
              opinion was ever authority that a justice cannot accept complaints              alleging
              offenses  beyond the jurisdiction      of the justice court and then transfer         the
              matter to county court or other court with appropriate           jurisdiction,     it
              was not only wrong but was implicitly         overruled by Attorney General
              Opinion V-946    (1949).

                       In any event, the language of the pertinent statutory provisions
              of the Code of Criminal    Procedure     makes it clear that the transmission
              of the complaint,   warrants   of arrest,  and bond to the county court by
              the justice is permissible   and proper.



                       Chapter Seventeen,      Code of Criminal Procedure,    deals exclusively
              with bail after arrest.     After concluding the proceeding   in which bail is
              granted or refused,     the magistrate   has certain duties as set out in article
              17. 30 of the Code:




                                                      p.   2253
The Honorable   Gus L.   Lanier     page 5       (H-500)




                     The magistrate,     before whom an examination has
                taken place upon a criminal accusation,        shall certify
                to all the proceedings    had before him, as well as
                where he discharges,      holds to bail or commits,     and
                transmit them, sealed up, to the court before which
                the defendant may be tried, writing his name across
                the seals of the envelope.      The voluntary statement
                of the defendant,    the testimony,    bail bonds, and every
                other proceeding in the case,       shall be thus delivered
                to the clerk of the proper court, without delay.

        Article 17. 31 describes the procedures to be followed after transfer
“to the court before which the defendant may be tried”     and provides:

                    If the proceedings    be delivered to a district clerk,
                he shall keep them safely and deliver the same to the
                next grand jury,    If the proceedings  are delivered   to
                a county clerk, he shall without delay deliver them to
                the district or county attorney of his county. (Emphasis
                added).

         Where a complaint and other papers involving Class A and Class
B misdemeanors      are delivered to the county clerk and in turn delivered
to the district or county attorney,   such attorney will cause an information
to be ~filed in the county court.   Code Grim. Proc.   arts.  21. 20, 21. 22.

         We accordingly   answer your fourth question in the      affirmative
--complaints   and other companion papers involving Class         A and Class B
misdemeanors     filed in a justice of the peace court may be     transferred   to
the county court where jurisdiction     for trial on the merits   lies.   An informa-
tion may be filed by the county attorney in the county court       upon the receipt
of such complaint.

                                  SUMMARY

                   Complaints  for Class A and Class B misdemeanors
                may be made before a justice of the peace.  The justice
                may docket such complaints  and issue warrants of arrest




                                     p.   2254
     The Honorable   Gus L.   Lanier     page 6       (H- 500)




                     thereon.    After arrest,      the arrested     persons     may be
                     admitted to bail by the       justice of the peace.        Such
                     complaints,    bail bonds      and other companion        papers
                     may be transferred     to     the county court, and       the county
                     attorney may then file        an information  based       on the
                     complaint.

                                                          Very     truly yours,




                                                          Attorney     General    of Texas


     APPROVED:


h&
     DAVID   M,   KENDA&L,     First   Assistant




     C. ROBERT HEATH,         Chairman
     Opinion Committee




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