                  THE     ATTORNEY    GENERAL.
                             OF TEXAS

                              March   31,   1989




Honorable  Mike Driscoll               Opinion     No.   ~~-1036
Harris County Attorney
1001 Preston, Suite 634                Re:   Constitutionality     of pro-
Houston,  Texas  77002                 vision of Code of Criminal     Pro-
                                       cedure limiting     justice   court
                                       venue based on the size of      the
                                       county    (RQ-1540)

Dear   Mr.    Driscoll:

       You ask four questions          regarding  article      45.22   of   the
Code   of Criminal Procedure,         which provides:

                 Sec. 1. No person shall ever be tried            in
             any justice precinct court unless the offense
             with which he     was charged     was committed      in
             such   precinct.      Provided,    however,    should
             there be no     duly qualified    justice    precinct
             court in the precinct where such offense           was
             committed,   then the defendant      shall be    tried
             in the justice     precinct next adjacent        which
             may have a duly qualified       justice court.     And
             provided   further, that if the justice of         the
             peace of the     precinct   in which the      offense
             was committed    is disqualified     for any   reason
             for trying the case, then such defendant           may
             be   tried   in   some    other   justice    precinct
             within the county.

                 Sec. 2.  No constable    shall   be allowed   a
             fee in any   misdemeanor   case    arising in   any
             precinct  other than the one for which he       has
             been elected or appointed,     except through    an
             order duly entered    upon the     minutes of   the
             county commissioners    court.

                Sec. 3. Any justice     of the   peace,   con-
             stable or deputy constable   violating   this Act
             shall be punished by a fine of not less      than
             $100 nor more than $500.




                                      p. 5365
Honorable     Mike    Driscoll    - Page   2   (JM-1036)




                Sec. 4.   The provisions of   this  Article
            shall apply only to counties having a popula-
            tion of 225,000 or over according   to the last
            preceding   federal census.

      The above-quoted   language,   codified   as article 45.22 of
the Code of    Criminal Procedure    in   1965, is unchanged     from
that adopted in     1934 and   codified as article      889a of   the
former Code of    Criminal Procedure.      Acts   1965, 59th    Leg.,
ch. 722, at 525;     Acts 1934, 43d beg.,      2d C.S., ch. 14,     at
29.

      Your    first    question    is:

            Is Tex.   Crim.   Proc. Code     Ann.   art.    45.22
            (1979) unconstitutional     because it limits the
            venue of   a justice    of   the peace    court     in
            counties  in excess of a population      of 225,000
            to cases arising in its own precinct        yet per-
            mits justice of the peace courts in         counties
            with smaller    populations   to   exercise    venue
            over cases arising outside its precinct?

As indicated    in your brief, it now appears settled that             ar-
ticle 45.22 is not in       conflict with article V, section           19,
of   the    Texas    Constitution,      which    provides      for     the
jurisdiction     of   justice    of   the   peace    courts.       Though
Attorney   General    Opinions    V-496 (1948)      and   C-602    (1966)
found such a conflict,      the opinion in -,
525 S.W.2d 280      (Tex. Civ.    App.- Eastland      1975, no     writ),
indicated   that those     rulings were in      error.    See   Attorney
General Opinion      H-1026   (1977)(overruling      Attorney    General
Opinions V-496 and C-602 in light of Bradley).1

      Thus, assuming that there      is no constitutional       infir-
mity in article     45.22 vis-a-vis   article   V, section 19,       we
turn to the issue raised in your brief as to the            constitu-
tionality    of  article     45.22  under     the   United     States
Constitution,   amendment   XIV, section 5, the Equal Protection
Clause.    YOU  also refer    to article    I, section     3, of   the
Texas Constitution.      ("All free men, when they form a social



           But See SUlaUf          V. State, 591    S.W.2d 869, 872   n.5
(Tex.'&im.     App. 1979)          (the "tide   of disagreement,    . .
seems to rise    and fall         seasonally,   over limitation  on   the
territorial   jurisdiction         of a justice of the peace court*l).




                                         p. 5366
Honorable     Mike   Driscoll   - Page   3   (JM-1036)




compact, have equal rights . . . .*I) Since it appears               that
the protection    afforded by article        I, section 3 is no      more
extensive   in   the    area   under    discussion     here   than   that
afforded by     the federal      Equal Protection      Clause, we    will
consider the constitutionality         of   article 45.22 only      under
the latter provision.        a    Texas Ontometrv     Bd.,v. Lee Vision
Center, Inc., 515 S.W.Zd 380, 386 (Tex. Civ. App. - Eastland
1974, writ     ref'd n.r.e.).       ("Texas courts     when   confronted
with questions     involving     the Due    Course of     Law and   Equal
Rights Clause of the        Texas Constitution     consistently     apply
the reasoning    and rationale       announced   by the United     States
Supreme    Court    on   questions     of   due   process    and    equal
protection.")       Se    1      Attorney    General    Opinion    JM-455
(1986) and the au%oEiEPes         cited there.

      As regards a claim of an equal protection           violation      in
connection   with the article 45.22 justice of the peace court
venue restrictions     for larger counties, we note at the            out-
set that the article might be more accurately             characterized
as discriminating     among, or making classifications             among,
offices and not     l'persons'@ within the      meaning of the      Four-
teenth Amendment's      proscription    on   denial "to      any   person
. . . [of] the equal protection        of   the laws."      It is   clear
that the legislature      has power to      attach different       duties
and   limitations     to     the   same     offices      in    different
jurisdictions.     See, e.a       Attorney General Opinion         JM-455
(1986)    (holding   that    ikgislature     may    prohibit      private
practice   of law   by county attorneys        in some    jurisdictions
and allow it     in others).      All persons are       on notice    when
they seek, and take      the oath of office        for, the office      of
justice of the peace       in a county     covered by article       45.22
that the restrictions      in article 45.22 will apply to them as
officeholders.

      Moreover, as regards    an equal  protection  claim   in
regard to the venue restrictions  of article 45.22, you state
in your brief that such a challenge would be subject to    the
"rational basis" test.    Under an equal protection analysis,

            [t]he general    rule  is that   legislation     is
            presumed to be valid and will be sustained       if
            the classification    drawn by   the statute     is
            rationally    related  to  a   legitimate    state
            interest.

Citv of Cleburne    v. Cleburne.Livinu    Center, 473 U.S.    432,
440 (1985).   Further indicating    the degree of scrutiny which
would be applied    under a   "rational basis" test    to such   a
claim, a plurality   of the U. S. Supreme Court in Clements v.




                                     p. 5367
Honorable     Mike   Driscoll   - Page   4   (JM-1036)




Fashinq    457 U.S. 957 (1982), held that unless a state stat-
ute burdens    a "suspect    classification"      or   a   "fundamental
right," classifications     made by     the statute "are set        aside
only if they are based      solely on reasons totally         unrelated
to the pursuit of the State's        goals and only if no        grounds
can be conceived     to justify them."        u.   at 963.      See also
Reed v. Reed, 404 U.S.      71 (1971).       Other equal     protection
cases have developed    intermediate     scrutiny tests for       appli-
cation in certain cases.        See. e.a      Mississinui    Univ.     for
Women   v.   Hoaan,   458   U.S.    718    i;982)    (sex);   Wills     v.
RabluetzeL,   456   U.S. 91    (1982) (illegitimacy).           However,
you have not indicated    in your brief any reasons why a court
might apply any test other than the minimum            scrutiny/ratio-
nal basis test to a claim       under article 45.22, and we          will
accordingly   consider only the possibility        of success of such
a claim made subject to such minimum scrutiny.

      Though the    particular    considerations      that   apparently
motivated   the  original     enactment     of   the   provisions     now
codified as article      45.22 may no      longer be applicable,       we
can   conceive   of   reasons     for   the    legislature's      having
retained these provisions      in   current law, namely, the        more
orderly and efficient     administration     of justice of the peace
courts in larger counties.2           Accordingly,    we think that      a



      2. When enacted  in 1934,   the bill    containing    these
provisions bore the following  emergency  clause in    pertinent
part:

                The   fact   that    Constables    and     Deputy
            Constables    in this State arrest and prosecute
            many     persons     for   alleged     misdemeanors
            committed     in   Precincts    other     than     the
            Precinct   in which    the Constable   was    elected
            or the    Deputy   Constable   appointed     for   the
            sole purpose of     mulcting   the   public out     of
            fees creates an emergency      . . . .

Acts 1934, 43d beg., 2d C.S., ch. 14, 8 5, at 30.        An amend-
ment to Texas Constitution,     article XVI, section 61 in      1972
prohibited  compensation   of any constables   or justices   of the
peace on a fee basis     and thus arguably eliminated    the    evil
at which the provisions     of what is now article 45.22        were
originally  addressed..   However, we note that, though we       are
not generally    finders   of   fact   in the   opinion    process,
                                             (Footnote Continued)




                                     p. 5368
Honorable   Mike   Driscoll   - Page   5   (JM-1036)




"rational basis"    for the  classifications  made    by   article
45.22 regarding   justice of the   peace court venue in      larger
counties would be found by a court entertaining     a    challenge
such as you present, and that the court would find the venue
provisions  of article 45.22 constitutionally   sound for equal
protection  purposes under a "rational basis" test.

      You also discuss in your brief whether the         application
of article 45.22     only to    counties with    a population     over
225,000    runs afoul   of the prohibition      in Texas   Constitu-
tion, article III, section 57 on local or special laws.             We
do not think it does.       Article 45.22    does not confine      its
applicability   to counties     having the designated     population
at the time of its enactment,       nor is it tied to any     partic-
ular census.    &9   Citv of    Houston v. Allred, 71 S.W.2d       251
(Tex. 1934).

      VIResort to    population     brackets     for  the   purpose     of
classifying    subjects    for legislation       is permissible     where
the spread     of   population    is broad     enough to    include     or
segregate   a   substantial      class, and    where    the  population
bears some real relation to         the subject of legislation        and
affords a     fair basis     for   the classification.1'       Ex   Parte
SDr' g, 586 S.W.2d       482, 485 (Tex.      Crim. App. 1978).       See.
Gwrnith        v. Decker     312   S.W.2d 632 (Tex. 1958); Citv         of
        rth v. Bobbitt:      36 S.W.2d 470 (Tex. 1931); Wouton          v.
State, 627 S.W.2d 765 (Tex. App. - ,Houston [lst Dist.] 1981,
no writ).3



(Footnote Continued)
information  supplied   in a brief submitted     in connection    with
this request indicates    that    the different    salaries set     for
the various   justices     of the   peace   in Harris     County,    as
adopted by the commissioners      court, appear to bear a direct
relationship  to   the revenues     generated   in   the   respective
justice precincts.     Thus the original purpose of the         provi-
sions of article 45.22 -- curtailing       the "mulctingVV of      fees
to increase justices'    compensation    -- may still be served by
those provisions.

      3. When enacted in 1934, the provisions     of what is now
article 45.22   applied   to  only Bexar,   Dallas   and   Harris
counties.  According   to the 1980 federal census, nine     Texas
counties have populations    in excess of   225,000.   The    1990
census will likely    show that  more Texas   citizens   live   in
counties subject to article 45.22 than do not.




                                    p. 5369
Honorable      Mike    Driscoll     - Page    6   (JM-1036)




        Your   second    question     is:

            Does Tex. Crim.    Proc. Code   Ann. art.    45.22
            (1979) violate the equal protection     clause of
            the Texas Constitution    art. I 5 3 (1879)     and
            U.S. Const. amend XIV g 5 because it       imposes
            a criminal   fine on a justice of the peace      in
    .       counties    with  a population     in  excess    of
            225,000 for trying an issuance of a bad check
            case   arising   outside    the  precinct,      but
            imposes no criminal    fine on a justice of     the
            peace in counties with a population     less than
            225,000 for trying an issuance of a bad check
            case arising outside its precinct?

@*Texas has   long  recognized     that    legislation     limited     in
operation   to only a portion of the state or prescribing           dif-
ferent penalties     for different    geographical     areas    is    not
invalid for denying equal protection         where there is a       rea-
sonable basis for the distinction       and all persons       similarly
situated  in the same place are equally treated."           Mouton     v.
State, sunra (addressing      constitutionality      of arson     provi-
sion making certain conduct in incorporated          cities or     towns
an offense but not so providing      with respect to such conduct
in unincorporated   areas).    See,    e.a    State ex rel.       Grimes
Countv Taxnavers    Ass'n   v.   Texas Mik.      Power    Aaencv,     565
S.W.2d 258 (Tex. Civ. App. .- Houston       [lst Dist.] 1978,       writ
dism'd) : Beckendorff   v. Harris-Galveston      Coastal    Subsidence
Dist., 558 S.W.2d 75 (Tex. Civ. App. - Houston           [14th    Dist.]
1977), aff'd, 563 S.W.2d 239 (Tex. 1978).

      In view of   our conclusion     in response    to your    first
question that a court would      probably    find a rational    basis
for the   legislature's   adopting    and maintaining     in   effect
article 45.22,    i.e. the   promotion     of more   efficient     and
orderly justice of the     peace court administration      in   urban
areas, we think that the     article's    provision  for a penalty
for the violation     of its venue    restrictions   would also     be
found to have a rational basis and thus to be         constitution-
ally sound.

        Your   third    question     is:

            Does a justice of the peace have an     affirma-
            tive   obligation    at  the  filing  stage    to
            ascertain   the precinct   in which the  offense
            of \iss.uance of a bad check' was committed     or
            may he comply with the mandate of Tex.      Crim.




                                            p. 5370
Honorable    Mike   Driscoll   - Page   7   (JM-1036)




            Proc. Code Ann. art. 45.22 (1979) and   refuse
            to exercise jurisdiction  at the trial stage?

      Again, section 1 of article 45.22 provides            in   relevant
part: "No person shall ever be $$&gd in any justice precinct
court unless the offense with which he was charged was                com-
mitted in such precinct."       (Emphasis added.)        We think     that
it is clear on the face of        section 1 that a justice of           the
peace subject to      article 45.22 has      not violated      section     1
until he "tries" a person        for an offense committed         outside
the precinct.      Whatever     the scope    of   the word      Vrytl    in
section 1, it     appears that     a "trial" would       not have     com-
menced at the "filing stage,"         and, therefore,     a failure      at
the   "filing    stage"    to   ascertain    that    the    offense     was
committed   outside the precinct       would not in itself        violate
the prohibition    in section 1 on lltryingll such a case.            See.
e.s., Grand Prairie HOSP. Auth. v. Tarrant Anoraisal                Dist.,
707 S.W.2d     281 (Tex.    APP. -    Fort Worth     1986, writ      ref'd
n.r.e.)   ("trial" under rule 63 of the         Texas Rules of       Civil
Procedure    does     not   include     hearing      on   a     plea     to
jurisdiction);    Flora    v. Scott,    398 S.W.2d      627 (Tex.      Civ.
APP. - Dallas     1965, writ ref'd      n.r.e.)(term     "trial"     broad
enough to encompass       all proceedings    from    time of     pretrial
hearings   or hearings    in limine).

      Thus we conclude that a     justice of the peace does     not
yet have an   "affirmative   duty" under    article 45.22 at    the
"filing stage"   to   "ascertain    the precinct    in which    the
offense was committed."4      He may rather, as you say, comply
with article 45.22 by "refusing to exercise       jurisdiction"  in
such a case at the "trial stage."

      You point in your brief to     the statement in Attorney
General Opinion JM-190   (1984) that   "it is not proper for     a
justice of the peace . . . to    accevt a bad check case    when
the offense did not   occur within his precinct."      (Emphasis



        4.  Obviously   it would    be a better     practice   from   the
standpoint     of judicial efficiency     and public convenience      for
a justice of      the peace    to ascertain    as   early as    possible
whether a bad check       case filed in his       court arose from      an
offense committed      outside his precinct,      where article     45.22
applies.      Our ruling here is     simply that a justice has        not
violated    the mandate     of article    45.22 by      failing at    the
IIfiling   stage I1 to ascertain    that the offense was       committed
outside the precinct.




                                    p. 5371
Honorable     Mike   Driscoll   - Page   8   (JM-1036)




added in   your    brief.)     Attorney     General    Opinion    JM-190
(1984) at 4.      We note that the rulings in Attorney           General
Opinion JM-190 were      made in response       to several     questions
from your    office    asking   whether    Il[it is]    proper     for   a
justice of the peace in Harris County to . . . accent a bad
check    charge/complaint*q       under     various      circumstances
(emphasis added).      Id. at 1. Whatever       the scope of the word
"accept" in the questions      asked and answers given in Attor-
ney General Opinion JM-190, we now reiterate           in response     to
your specific     question,    and   by way     of  clarification      of
Attorney  General Opinion JM-190,        that we believe a justice
of the peace subject to the provisions          of article 45.22 does
not violate the prohibition       in   that article, on 'ltryingll a
person for    an offense     committed   outside    the precinct,      by
failing at the "filing stage" to ascertain          that the     offense
was committed    outside the precinct.

     You also point       in your   brief to the following        language
in Attorney General       Opinion   H-1026  (1977):

                Your final question    involves the    possible
            sanctions   for a magistrate's     refusal to    ob-
            serve the provisions     of article 45.22.      That
            article provides    for   a fine in    such an   in-
            stance.    Furthermore,   a corrupt and     willful
            violation   of article    45.22 could    constitute
            official misconduct     and subject an    offending
            magistrate   to removal.    V.T.C.S.  arts. 5970 -
            5997; ~99 Brackenridae     v. State, 11 S.W.     630
            (Tex. Civ. App. 1889, no writ).

Attorney   General Opinion H-1026          (1977) at 3.     Stating     that
"concerns    with respect to an ascertainable          standard   of guilt
have been raised," you suggest that Attorney             General Opinion
H-1026 indicates      that there     must be "willful or        deliberate
disregard    of the venue provision       before the criminal penalty
is imposed." We       think that the phrase        "corrupt and willful
violation    of   article 45.22"       in the   above-quoted      language
from Attorney       General Opinion      H-1026 referred      not to     the
culpable mental state required for an offense under                 section
3 of article 45.22, but rather to the mental state                required
for "official misconduct,"        as provided     for then in V.T.C.S.
article 5973 (official misconduct            "includes   any willful      or
corrupt failure, refusal or neglect of an officer to perform
any duty enjoined       on him by law"), now Local Government          Code
section 87.011 (using the          language   "intentional    or   CorNpt
failure, refusal, or neglect,"          etc.).    Short of the      "inten-
tional    or    corrupt"    mental    state    required     for   official
misconduct,     the offense created       under section 3 of       article




                                     p. 5372
    Honorable       Mike   Driscoll     - Page    9   (JM-1036)
.




    45.22,    we think,  requires only   one or more  of the                       mental
    states    listed in Penal Code section 6.02, subsection                       (c):

                      (cl If the definition      of an offense    does
                  not prescribe    a culpable     mental state,    but
                  one is nevertheless     required under Subsection
                  (b) of   this section,      intent, knowledge,    or
                  recklessness   suffices    to establish    criminal
                  responsibility.5

    See also       Penal   Code   § 6.03     (definitions          of culpable     mental
    states).

          Your      fourth   question      is:

                  Is Tex.     Crim. Proc.     Code Ann.      art.    45.22,
                  unconstitutional      because it imposes differing
                  costs for     the same misdemeanor         offenses     by
                  only    restricting       constables      in    populous
                  counties     from    collecting      arrest    fees    for
                  out-of-precinct       misdemeanor        offenses      but
                  permits    constables        in   counties      with      a
                  population      less   than     225,000    to     collect
                  arrest fees for out-of-precinct           offenses     and
                  relies    upon    the    commissioners       courts     of
                  populous    counties to issue orders to           correct
                  this unconstitutional        assessment    of costs?

          Again, section   2 of    article                 45.22     of   the    Code     of
    Criminal Procedure   provides:

                      Sec. 2.  No constable   shall be allowed   a
                  fee in any   misdemeanor  case   arising in  any
                  precinct  other than the one for which he    has
                  been elected or appointed,    except through  an



             5.    Subsection     (b) of section       6.02 provides:

                      (b)   If the definition   of an offense     does
                  not prescribe     a culpable    mental    state,    a
                  culpable     mental    state     '    nevertheless
                  required    unless    the    def&tion       plainly
                  dispenses   with any mental element.

    We do not think that   article 45.22                   "plainly dispenses           with
    any mental element"  for the offense                   it creates.




                                                 p. 5373
Honorable     Mike   Driscoll   - Page   10   (JM-1036)




            order duly entered      upon the     minutes   of   the
            county commissioners     court.

      If section 2 were read to refer to fees for services               of
constables   to be turned over to         "[a] clerk of a court or        a
county clerk"     under     article    102.001(f)     of   the    Code   of
Criminal   Procedure,    or to    the %ustodian      of a    . . . county
treasury"   under    article 102.011(f),        the section     would    be
unconstitutional     as llallowing different      costs to be assessed
in different    counties    for the same penal offense        . . . [thus
violating]     both    'due    process'     and    'equal     protection'
constitutional     rights."      Attorney    General     Opinion    JW-880
(1988) at 3.

      On the other   hand, if   this 1934 language    is read    to
refer to a fee to be retained by a constable      for services   in
connection  with   criminal matters    in justice   of the   peace
courts, it has been inoperative      since 1973, when an    amend-
ment to article XVI, section     61, of the Texas    Constitution
took effect prohibiting    the compensation   of any constable   on
a fee basis.

      We think   it unnecessary  to choose   between these    two
possible  readings of section   2, since under either    reading
the section is at present a nullity.



               A court    would    probably    find   a rational
            basis for    the venue     restrictions    placed     by
            Code of Criminal Procedure,       article 45.22       on
            justice of the peace courts in counties            with
            a population   of 225,000 or more, and            would
            thus likely     find   those    venue    restrictions
            constitutional     under     the     United     States
            Constitution,    amendment     14, section     5,   and
            the Texas Constitution,      article I, section 3,
            and article III, section 57.

                Similarly,   a court     would   probably     find
            that the    criminal    penalty provided      for   in
            section 4 of article       45.22 for violation      of
            the provisions     of  that article is     constitu-
            tional under the      Equal Protection    Clause    of
            the United     States   Constitution,     and   under
            article I, section 3, of the Texas         Constitu-
            tion.




                                      p. 5374
Honorable     Mike   Driscoll    - Page   11    (JM-1036)




               A justice of the peace subject to       article
            45.22 does not violate the provisions      of that
            article   by  failing   to   ascertain    at    the
            "filing stage" that    the offense in     question
            was committed  outside   his precinct.     He may
            comply with   article   45.22   by   making    such
            determination  at the "trial stage."

               Article 45.22, section 2, prohibiting      the
            allowance  of a fee to   a constable   in a mis-
            demeanor case arising outside the constable's
            precinct,   except   by   commissioners     court
            order, is   either  unconstitutional     or  cur-
            rently inoperative  and   is in   either case    a
            nullity.




                                                JIM      MATTOX
                                                Attorney General   of Texas

MARYKELLER
First Assistant       Attorney    General

LCU MCCREARY
Executive  Assistant       Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney           General

RICK GILPIN
Chairman,  Opinion      Committee

Prepared by William Walker
Assistant Attorney  General




                                        p. 5375
