            THE   ATTOIWEY              GENERAL
                        Q,P TEXAS
                       AUSTIN   11.TEXAS

                                November 14, 1963

Hon. Hulon .B.
            , Brown               Opinion No. C-177
District Attorney
2nd and 145 Judicial
  Districts of Texas
Jacksonville, Texas               Re:    Construction of Articles
                                         296, 297 and 299, of the
                                         Texas Code of Criminal
                                         Procedure, Relative to
                                         the handling of felony
                                         complaints by a Justice
Dear Sir:                                of the Peace.
     Your recent request for an opinion of this Department
upon the questions
                _ as are herein stated has been received. We
quote from your letter as follows:
         "A few weeks ago I talked with someone
    there in your office relative to a situation
    which has caused us considerable inconven-
    ience and loss of efficiency in the Process-
    ing of felony complaints filed in Angellna
    County. This has to do with the action by
    the Justice of the Peace of Precinct No. 1
    of Angellna County, Texas, wherein each time
    a felony complaint Is filed in his court, he
    Immediately seals up the complaint in a red
    jacket and turns the complaints (along with
    any other papers filed in connection with. the
    case), over to the district clerk. He has
    instructed the district clerk that these are
    not to be opened or turned over to anyone
    except the grand jury.
         "I am enclosing an article from the
    Lufkin newspaper wherein this Justice of the
    Peace tried to explain his position.
    will note, he relies primiarily on Art~$%ou296,
    297 and 299 of the Code of Criminal Procedure
    . . . . I do not believe your office has ever
    written an opinion on this question, but I
    would appreciate your doing so in order that
    we might alleviate this . . . handling of
    these matters.

                                -867-
Hon. Hulon B. Brown, page 2    (c-177)


     Article 296 of Vernon's Code of Criminal Procedure pro-
vides:
          "The magistrate, before whom an exami-
     nation has taken place upon a criminal ac-
     cusatlon, shall certify to all the proceed-
     ings had before him, as well where he dls-
     charges, holds to ball or commits, and trans-
     mit them, sealed up, to the court before which
     the defendant may be tried, writing his name
     across the seals of the envelope. The volun-
     tary statement of the defendant, the testimony,
     bail bonds, and every other proceeding in the
     case, shall be thus delivered tolltheclerk of
     the proper court, without delay.
     Article 297 of Vernon's Code of Criminal Procedure pro-
vides:
          "If the proceedings be delivered to a
     district clerk, he shall keep them safe&
     and deliver the same to the next grand jury.
     If the proceedingsare delivered to a county
     clerk, he shall without delay deliver them
     to the iistrict or county attorney of his
     county.   (Emphasis added)
     Article 299 of Vernon's Code of Criminal Procedure pro-
vides:
          "The accused may waive an examining
     trial in any bailable case and consent for
     the magistrate to require ball of him; but
     the prosecutor or magistrate may examine
     the witnesses for the state as in other cases.
     The magistrate shall send to the proper
     clerk with the other proceedings in the
     case a list of the witnesses for the State,
     their residence and whether examined."
     The court in Duncan v. State, 102 Tex.Crim. 612, 279 S.W.
457 (1926)  when construing Article 347 of the 1911 Code of
Criminal Procedure (which is virtually the same article as
Article 296) stated:
          "We are unable to conclude that a reversal
     of the judgment of the conviction in this case
     can be justly found on the failure of the mag-
     istrate in the examining court to certify,
     seal, and deliver to the clerk of the court
                              -868-
Hon. Hulon B. Brown, page 3    (C-177)


    the proceedings In the examining court.  m
    purpose of this statue is that these records
    may be Dreserved for use by the nrand jury and
    for the Drosecutinn officers." (Emphasis added)
     Article V, Section 21, of the Texas Constitution author-
izes the county attorney, and In some instances, the district
attorney, and makes It their duty, to represent the State of
Texas in all cases in the district or inferior courts of their
respective counties. It should further be noted that in dis-
cussing Article V, Section 21, of the Texas Constitution in
SheDDerd v. Alanlz, 303 S.W.2d 846, (Tex.Civ.App. 1957), it
was stated:
          "It has always been the principal duty of
     the district and county attorneys to investigate
     and prosecute the violation of all criminal laws
     . . . and these duties cannot be taken away from
     them by the legislature and given to others.
     The objects of the Code of Criminal Procedure can be
found in Article 1 of the Code which provides:
         "This code is intended to embrace rules
    applicable to the prevention and prosecutlcn of
    offenses against the laws of this State, and to
    make the rules of proceeding in respect to the
    prevention and punishment of offenses intelll-
    gible to the officers who are to act under them,
    and to all persons whose rights are to be affected
    by them. It seeks: 1. To adopt measures for
    preventing the commission of crime. 2. To exclude
    the offender from all hope of escape. 3. 32
    insure a trial with rislittle delav as is con-
    sistent with the ends of justice. 4. To bring
    to the investigation of each offense on the
    trial all the evidence tending to produce con-
    viction or acauittal. 5.   To Insure a fair and
    impartial trial and 6.   The certain execu-
    tion of the sentence of the law when declared."
    (Emphasis added)
     Further evidence of the intent of the legislature in pass-
ing this code can be seen in the first sentence of Article 3,
of Vernon's Code of Criminal Procedure which reads in part as
follows:
          "In all criminal prosecutions the accused
     shall have a,,@T;;ga;;;l;;d;;;al by an Impartial
     jury. . . .

                              -869-
                                                                 --   .




Hon. Hulon B. Brown, page 4   (C-177)


     Article 23 of Vernon's Code of Criminal Procedure further
advises the user of the Code how to construe It. Article 23
provides:
          ?he provisions of this Code shall be liberally
     construed, so as to attain the objects Intended
     by the legislature: prevention, suppression and
     punishment of crime.'
     Thus it can be seen that in light of the articulation of
the legislature in Article 23, Article 3, Article 1 and the
other Articles of the Code of Criminal Procedure noted above,
that the Intent was to not deter the district attorney's
investigation of felony cases. We are of the opinion that the
magistrate should abide by the provisions of Article 296 and
transmit, sealed up, all the proceedings held before him in
an examinln trial. However, we do feel that in light of the
Legislature8 s language regarding speedy trials, liberal con-
struction, and the gathering of all evidence in an investl-
gatlon, that the duty of the clerk is discharged if he keeps
the records safely. Construing the Articles together with
the holding In the puncan case we feel the district attorney
should have access to these records so that he may develop
the prosecution of his cases prior to the time they are
delivered to the grand jury.

                    SUMMARY
          It Is the duty of the district clerk to keep
     "safely" the proceedings received from the magistrate
     who holds examining trials; however, the district
     attorney should have access to these proceedings
     so he may fully develop his case prior to the time
     they are delivered to the grand jury.
                          Yours very truly,
                          WAGGONER CARR
                          Attorney General of Texas



                              James P. Brlscoe
                              Assistant Attorney General
JPB:cjp
Hon. Hulon B. Brown, page 5     (C-177)


APPROVED:
OPINION COEPMITTEE
V. W. Geppert, Chairman
Cecil Rotsch
Ben Harrison
Scott Garrison
Sam Lane
APPROVED FOR THE ATTORNEY GENERAL
JXY: Stanton Stone




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