                           QBfficeof tly Bttornep @eneral
                                   Mate of Iltexae’
DAN MORALES                               January 20,1994
 ATTORNEI
       GENERAL


     Honorable David H. Cain                       Opinion No. DM-285
     Chair
     Committee on Transportation                   Re: What court is the proper forum for
     Texas House of Representatives                prosecutions brought under House Bill 1084,
     P.O. Box 2910                                 Acts 1993, 73d Leg., ch. 88, at 175-76
     Austin, Texas 78768-2910                      @Q-629

     Dear Representative Cain:

             You have requested our opinion regarding the proper forum for prosecution of the
     offense of “overtaking and passing a school bus.” The 73rd Legislature amended section
     104 of article 6701d, V.T.C.S., to increase the penalties attached to this offense., which
     hitherto had been limited to “a fine of not less than $50 nor more than $200.” Acts 1993,
     73d Leg., ch. 88, $ 1, at 175-76. As of September 1, 1993, section 104 prescribes the
     following penalties:

                    (c) An offense under this section is punishable by a fine of not
               less than $200 and not more than $1,000.

                    (d) On conviction of a person of a second or subsequent offense
               under this section, the court may order that the person’s driver’s
               license be suspended for a period of up to six months beginning on
               the date of conviction. In this subsection, “driver’s license” has the
               meaning assigned by Section 1, Chapter 173, Acts of the 47th
               Legislature, Regular Session, 1941 (Article 6687b, Vernon’s Texas
               Civil Statutes).

                    (e) If a person fails to pay a previously assessed fine or costs on
               a conviction under this section, or is determined by the court to have
               insufficient resources or income to pay a fine or costs on a conviction
               under this section, the court may order the person to perform
               cqmrnunity service. The court shall set the number of hours of
               service under this subsection.

     You ask whether prosecutions under the newly amended section 104 should be initiated in
     a justice court or a county court. For reasons to be discussed, infu, we initially consider
     only “first offense” violations brought under the newly amended section 104.




                                             p.   1516
Honorable David H. Cain - Page 2              (DM-285)




        Article V, section 19 of the Texas Constitution provides:

                 Justice of the peace courts shah have original jurisdiction in
           criminal matters of misdemeanor cases punishable by fine only,
           exclusive jurisdiction in civil matters where the amount in
           controversy is two hundred dollars or less, and such other
           jurisdiction as may be provided, by law. Justices of the peace shag be
           ex officio notaries public.

Tex. Const. art. V, 5 19. The present version of article V, section 19, was adopted in
1985. Prior thereto, the criminal jurisdiction of a justice court encompassed “ah cases
where the penalty or Sne to be imposed by law” was “not. . more than for two hundred
dollars.”

         Jn 1991, section 4.11 of the Code of Criminal Procedure was amended to grant to
justice. courts “jurisdiction in criminal cases where the fine to be imposed by law may not
exceed five hundred dollars.” Acts 1991, 72d Leg., ch. 108, .§ 4, at 681. Simultaneously,
 section 4.07 of the code was amended to give county courts “original jurisdiction of all
misdemeanors of which exclusive original jurisdiction is not given to the justice court, and
when the fine to be imposed shag exceed five hundred dollars.” Id. 4 3. at 681. Jn 1991,
section 26.045 of the Government Code was amended to grant to every con.Wutional
county court, and, by virtue of subsection 25.0003 of the Government Code, to every
statufory county court as well, “exclusive original jurisdiction of misdemeanors other
than misdemeanors involving official misconduct and cases in which the highest tine that
may be imposed is $500 or less.” Id. 3 6, at 682.

         Article V, section 16 of the Texas Constitution provides that a [constitutional]
county court, i.e., one whose presiding officer is the county judge, “has jurisdiction as
provided by law.” Sturu~ory county courts, on the other hand, are not specifically
identified in the constitution; rather, they exist by virtue of the legislature’s authority, in
article V, section 1, to “establish such other courts as it may deem necessary and prescribe
the jurisdiction and organization thereof”t        The legislature is clearly author&d to
prescribe the jurisdiction of both hinds of county court, but it may not do so in

          Wndef article 4.14, Codeof Criminal Pnxedue, a municipal oxul is grantedexclusiveoriginal
jurisdiction in all criminal easesthat fit the follewingprofile: 1) the otTenseoccurs within the ci@s
wrporatelimits; 2) the offense arisesundera mnnieipd ordirmce which rcgnlateafire safety, zoning, or
public health and sanitation,including the dumpingof mitse; and 3) the maximumpm&bent is by a
he of up to $2,000. The municipalwlut is also grantedexclusiveorigimz/jurisdictionin all other casea
which 1) arise undera city ordinance,and in which 2) the maximumpcaalty is by a fine of up to $500.
Fiily, the municipal wut is grantedconcurrenfjurisdiction with a particularjustice court under the
following scenario: 1) the dense occvs within the ci@s corporatelimits; 2) the offense occurs within
the geographicalboundariesof the justice wart precinct;3) the offense arisesunderthe criminal laws of
the stole [ratherthan under a municipalordinance];and 4) the maximumpunishmentis by fine of not
morethan ssoo.



                                             p.   1517
Honorable David H. Cain - Page 3             (DM-285)




contravention of article V, section 19, which grants to a justice of the peace jurisdiction of
all criminal offenses punishable by fine only, and, in addition, authorizes the legislature to
add to the jurisdiction of the justice court.

         This result was recently aflirmed in Attorney General Opinion DM-277 (1993), in
which we determined that justice court is a proper forum for complaints tiled under
section 13 of article 249a, V.T.C.S., which~ prohibits the unauthorized practice of
architecture. The opinion declared that article 4.11, Code of Criminal Procedure, “is
unconstitutional and void to the extent that it purports to” limit justice court jurisdiction to
those cases in which the maximum fine is $500 or less. Opinion DM-277 cited with
approval Attorney General Opinion JM-1089 (1989), which was the first opinion to hold
that the $500 limitation imposed by article 4.11 was an in&id attempt to circumscribe the
jurisdiction of the justice comt2

         Attorney General Opinion JM-1089 also noted that there are a variety of
circumstances in which “criminal district courts and constitutional and statutory county
courts would have jurisdiction” over particular kinds of misdemeanors, and that statutes
relevant to a particular county must be consulted in order to determine the precise criminal
jurisdiction of the various criminal district, district, constitutional county, and statutory
county court~.~ See Gov’t Code chs. 24 (district courts), 25 (statutory county courts), 26
(constitutional county courts), 27 (justice wurts), 29 (municipal courts), 30 (municipal
courts of record). Whatever the concurrent jurisdiction of such courts, it is clear that, on
the basis of article V, section 19, a justice court may not be denied jurisdiction of any
criminal matter in which the maximum punishment is limited to a fine.


        We now consider the applicability of these principles to the question you present,
i.e., which court is the proper forum for prosecuting a first offense under section 104 of
article 6701d. Because the clear language of the statute provides for punishment “by a
fine of not less than $200 and not more than $1,000,” the offense is one which, under
article V, section 19 of the Texas Constitution, is within the jurisdiction of the justice
court. The constitution does not, however, make that jurisdiction “exclusive.” Thus,
article V, section 19, does not invalidate article 4.07 of the Code of Criminal Procedure,
which confers upon a county court original criminal jurisdiction in all cases in which
exclusive original jurisdiction is not wmmitted to the justice court, md where the




utiutioW~on       ~~4-27 7   also overruledLetter Opinion 92-23 (1992), which had upheld the $500


         3The criminaljurisdictionof a wnstitutional or statutorywanly courtmay be limited by special
statutoryprovisionsapplicableto particularcounties, as describedin AttorneyGeneralOpinion IM-1089,
supro.



                                              p.   1518
HonorableDavid      H. Cain - Page 4         (DM-285)




maximum tine upon conviction is greater than $500.4 In such instances, the justice and
county wurts have concurrent jurisdiction over all first offense prosecutions under section
104.5

        Thus far, we have limited our inquhy to “first offense” prosecutions under newly
amended section 104. Subsection (d) thereof provides that, for ‘a second or subsequent
offense . the court may order that the person’s driver’s license be suspended for a period
of up to six months begimting on the date of conviction.”

        InErpmre Morris, 325 S.W.Zd 386 (Tex. Crim. App. 1959), the wurt considered
whether an offense under article 1377 of the Penal Code (the miminal trespass provision)
could properly be initiated in justice wurt. The maximum punishment under the statute
was “a fine of not more than S200,” and, in the wurt’s discretion, forfeiture of the
defendant’s hunting license for a period of one year. The court held that, since the
provision regarding license forfeiture was “not a pecuniary fbte or a part of a tine,” a
justice court was without authority to hear a case under article 1377. Id. at 387.

         Analogously, the court’s authority to order the suspension of a defendant’s driver’s
license, on conviction of a “second or subsequent offense,” removes from justice court
jurisdiction all second and subsequent offenses brought under section 104. As we have
noted, article V, section 19 authorizes the legislature to grant to a justice court “such
other jurisdiction as may be provided by law.” Although the legislature could, under this
provision, authorize justice court jurisdiction over offenses which carry a maximum
punishment of borh fine und license suspension, it has not done so. Thus, while first
offense prosecutions under section 104 may be commenced either in justice or county
wurt, any prosecution of a defendant who has been once convicted under that statute may
be initiated only in county court.6

       It might also be argued that subsection (e) permits an “additional punishment”--
wmmunity service-which would deprive a justice court of jurisdiction to hear uny
prosecution brought under section 104. In our opinion, such reasoning is fallacious.
Subsection (e) prescribes not an “additional,” but an “alternative,” punishme.nt. Unless
such an alternative is available, a court’s imposition of a fine under section 104 would be

        ‘To tbe extent that section 26.045, Governmat Code,gra~~ts
                                                                to a wunry court erclvslw original
ju~u~ti~~~emeaaors           in which the maximumpunishment is a fine of more than $500, it is


         %e wnwrrwt jmisdiction of a munktpd courtis limitedto o&nses arising understate law in
which the maximum punishment is by a fine of not more than $500. Since municipal courts are not
amongthose specificallyestablishedby the wnstitution, the legislatureis tke to impose restrictionsupon
theirjarisdiction,and, in oar opinion, has validly done so.

       6~0~ do not ask, and we do not consider whether, in order to permit prosecution under
n&section(d), thejirsf conviction most have cuxued q?er the effectivedateof HouseBill 1084.




                                                p.   1519
Honorable David H. Cain - Page 5           (DM-285)




ine&ctual in accomplishing the state’s interest in punishment and deterrence.
Furthermore, the same session of the legislature which amended section 104 specifically
authorized the imposition of “community service” by a justice of the peace.

        House Bill 930, Acts 1993, 73d Leg., ch. 298, at 1371-72, which adds section
45.521 to the Code of Criminal Procedure, provides for the imposition of wmmunity
service by “a justice or judge” whenever a defendant has failed “to pay a previously
assessed fine or costs, or who is determined by the wurt to have insufficient resources or
income to pay a fine or costs.” House Bill 930 is clearly intended to be applicable to those
courts which specialize in “fine only” penalties. Indeed, the title of the bii indicates that it
relates “to the authority of a justice of the peace or municipal judge to order wmmunity
service in satisfaction of fine or costs and to the justice precinct in which persons may be
tried or in which a constable may be allowed a fee.” The “community service” language
adopted in House Bill 930 is virtually identical to that used in subsection (e) of newly-
enacted section 104. The two statutes, enacted by the same session of the legislature, are
in pari materiu with each other.         In our opinion, legislative authority to prescribe
“wmmunity service” as an alternative punisbment in certain instances is clearly
contemplated by that portion of article V, section 19, which permits the legislature to
confer upon justice courts “such other jurisdiction as may be provided by law.”


         In summary, we conclude that a defendant who has not been previously convicted
of the offense of “overtaking and passing a school bus,” as described in section 104 of
article 6701d, V.T.C.S., may be prosecuted either in the justice court precinct in which the
offense occurs, or, subject to the limitations noted, supra, and described in Attorney
General Opinion TM-1089, in the constitutional or statutory county court of the county in
which it occurs. Persons who have been once convicted of the offense may not be tried in
justice court.




                                           n.   1520
,


    Honorable David H. Cain - Page 6        W-285)




                                      SUMMARY

                   A defendant who has not been previously convicted of the
              offense of “overtaking and passing a school bus,” as described in
              section 104 of article 6701d, V.T.C.S., may be prosecuted either in
              the justice court precinct in which the offense occurs, or, subject to
              certain limitations as described in Attorney Generai Opinion JM-1089
              (1989), in the constitutional or statutory county wurt of the county
              in which it occurs. Persons who have been once convicted of the
              offense may not be tried in justice wurt.




                                                        DAN      MORALES
                                                        Attorney General of Texas

    JORGE VEGA
    Fii Assistant Attorney General

    WILL PRYOR
    Special Counsel

    RENEA HICKS
    State Solicitor

    MADELEINB B. JOHNSON
    Chair, Opiion Committee

    Prepared by Rick Gilpin
    Assistant Attorney General




                                             p. 1521
