 Gerald C.'.Masln       L%WWI-IN H. '&CXAf3
A¶-roPrarn~
        "nN.sar.
   Honorable M. D. Emerson
   County Attorney, Lamar County
   Paris, Texas
  Dear   sir:                       Opinion No. O-2349
                                    Re: Justice Court-Waiver
                                        of Jurisdiction by
                                        appearance before
                                        justice of peace for
                                        plea of guilty outside
                                        precinct of arreat.
             This is to acknow~ledgeyour request for our
  opinion as to the legality of the procedure wherein a de-
  fendant enter8 a plea before a justice of the peace at
  a place outside the territorial limits of the precinct
  wherein the arrest was perfected. You submit the follow-
  ing question:
                "If the defendant waives the question of
         jurisdiction by his appearance before and plea
         of guilty to a Juatice of the Peace, is such
         plea of guilty so accepted a legal plea of
         guilty?"
              It is provided by statute that justices of the
   peace have jurisdiction in criminal cases where the
   fine to be imposed by law may not exceed two hundred
   dollara. (Art.60, C.C.P.)
              In the case of Ex parte Van Kocnneritz, 105
   Tex. Cr. R. 135, 286 S. w.T87, petitioner sought re-
   lease through a writ of habeas corpus. A complaint
   chargin an offense had been filed in justice precinct
   6, of Travis County, whereas petitioner claimed the
   offense was committed, if at all, in justice precinct
   3. We quote from the opinion of the Court of Criminal
   Appea~ls:
               "We do not agree with applicant's con-
         tention that the alleged anticipated trial
         of the applicant before the justice court of
         precinct No. 6 would be a mere nullity. Hi8
         action in the event of a trial, in OUP judg-
         ment, would not be void. Under the plain
         terms of the statute itself, the justice of
         precinct No. 6 has jurisdiction of the subject
HOG. M. D. Emerson, page 2 (O-2349)


   matter   of   the   suit.   Article 60, 1925 Revision
   C.C.P.
          "If it be conceded that applicant would have
   the right upon proper motion to have the case
   transferred to the justice precinct in which
   the alleged offense occurred, which question it is
   unecessary to decide in this case, it would still
   follow that such right would not render the trial
   of the cause in justice urecinct No. 6 void. SUD-




   we think, correctly stated the rule as follows:
           "'The word "void" can with no :ropriety
   be applied to a thing which appears to be sound,
   aad which while in existence can command and en-
   force respect, and whose infirmity cannot be made
   maaifest.   If a judgmmt rendered without in fact
   bringing the defendants into court cannot be attack-
   ed collaterally on this ground unless the want of
   authority over them appears in the record, it is
   no more void than if it we~e founded upon a mere
   misconception of some matter of law OP of fact oc-
   curing in the exercise of an unquestionable juris-
   diction. In either case the judgment can be avoid-
   ed and made functus officio by some appropriate
   proceedings instituted for that purpose; but, if
   not so avoided, must be respected and enforced.' Dunn
   v. Taylor, 42 Tex. Civ. App. 241, 94 S.W. 347.
          "The anticipated action of the justice
   of the peace of precinct No. 6 being in no event
   more than voidableI applicant is sot entitled to
   the relief sought.' (Bnphasis ours)
           The case of Stewart v. Smallwood, (Tcx. Civ. App.)
102 S. W. 159 is a civil case wherein the resident justice of
the peace was absent from his precinct and the nearest justice
of the peace in an adjoining precinct acted for him. Plaintiff
proceeded to judgment and the defendant appealed, contending
the visi~tingjustice exceeded his authority   in going out of his
precinct Ao act for the absent justice.    The Court of Civil
Appeala affirmed the case saying:
Hon. M. D. Emerson, page 3 (o-2349)

           "The fact that Justice Self attempted to
    act at Boeham, outside hia precinct, aad in the
    place of Justice Fitzgerald, abee&, and issued
    the citation while so acting, doea aot necessarily
    require a dismissal of the suit.  This irregular-
    ity only affected the quo&Ion of jurisdiction
    over the person of defendant, and could be waived
    by him. *** These facts ahow a voluntary appear-
    ance by defendant and his submission to the juris-
    diction of the court over his person, and the motion
    to dismiss was therefore properly overruled.***."
            We have been unable to find any further expreasion
of our courts upon your question aa presented. We do wish
to direct your attention to the provisions of Article 11,
C.C.P. as amended by the Acts of the Forty-Second Legislature,
ch 43, sec. 32, p. 65:
           "The defendant in a criminal prosecution
    for any offensk, may waive any right secured
    him by law except the rQht of a trial by a Jury
    in a felony cane when he enters a plea of not
    guilty."
             You are therefore advised that it is our opinion
    your  question ahould be answered in the affirmative;
    that where a defendant waives the question of jurisdic-
    tion by appearing before a Justice of the Peace and
    entering   a plea of guilty, such plea of guilty is legal,
    even though made outside the precinct of arrest.

                                       Very   truly   yours

                                ATTORNEX GENERAL OF TEXAS
                                By e/s/ Benjamin Woodall
                                        Benjamin Woodall
                                              Assistant


                                         Approved
                                          Opinion
                                        Committee
                                        By RUB
    BW:RW:vb                             Chairman

           APPROVED MAY 20, 1940
            Gerald C. Mann
           Attorney General of Tcxaa
