                      TWEAYTORNEY                    GENERAL
                               OF TEXAS
                           AUSTIN.     Tms           78711



                                     March   18. 1974


The Honorable V. Murray       Jordan           Opinion No.    H-   262
District Attorney
198th Judicial District                        Re:      Trial of marihuana possession
107 East Main Street                                    offenses alleged to have been
Brady,   Texas 76825                                    committed before the effective
                                                        date of the Texas Controlled
Dear Mr.         Jordan:                                Substances Act.

     You have asked whether the county court may try a case involving
the offense of possession  of less than four ounces of marihuana when the
alleged offense occurred  prior to August 27, 1973, the effective date
of the new Texas Controlled Substances Act.

     Formerly,  possession   of any amount of marihuana was a felony.
Acts 1937, 45th Leg.,    ch. 169, p. 333 (formerly,    Vernon’s  Texas Penal
Code, Art. 725b).     From and after August’27,     1973, possession   of
four ounces or less of marihuana is a misdemeanor.          Texas Controlled
Substances Act [hereinafter    referred to as the Act], Vernon’s     Texas
Civil Statutes, Article 4476-15,    Sec. 4.05.   Offenses committed before
August 27, 1973, but tried after that date are controlled by Sec. 6.01 of
the Act which provides in part:

        “(a) Except as provided in Subsections     (b) and (c) of
        this section,  this Act applies only to offenses committed
        on and after its effective date, and a criminal action
        for an offense committed before this Act’s effective
        date is governed by the law existing before the effective
        date, which law is continued in effect for this purpose,
        as if this Act were not in force.    For purposes   of
        this section,  an offense is committed   on or after the
        effective date of this Act if any element of the offense
        occurs on or after the effective date.

        ,I
             .    .   .




                                        p.   1227
The Honorable    V. Murray   Jordan,    page 2     (H-262)




        “(c) In a criminal action pending, on appeal, or
        commenced    on or after the effective date of this
        Act, for an offense committed before the effective
        date, the defendant, if adjudged guilty. shall be
        assessed  punishment under this Act if he so elects
        by written motion filed with the trial court re-
        questing that the, court sentence him under the pro-
        visions of this Act. I’

     Although Sec. 6.01(c) has been declared unconstitutional     insofar
as it applies to actions in which a conviction was being appealed on
or after August 27, 1973, the provisions    of the section relating to
actions awaiting trial on the effective date of the Act were not
affected,   Ek parte Giles,  502 S. W. 2d 774 (Tex. Crim. App.      1973).

     Thus. pre-August    27, offenses are to be tried under the old
felony statute, but the potential punishment may be .of either ,felony
or misdemeanor    status, at the option of the defendant.   If ths quantity
involved is four ounces or less, and if the defendant elects to be
sentenced under the provisions     of the new Texas Controlled Substances
Act, any conviction necessarily     is a misdemeanor   conviction.   Jones
v. State, 502 SW. 2d 771 (Tex. Crim.App.:       1973).

     The county courts have original jurisdiction    of ,misdemeanors
in which the potential punishment exceeds a fine of two hundred dollars.
Vernon’s   Texas Code of Criminal Procedure,       Article 4.07.   District
courts have original jurisdiction   in felony cases.    Texas Constitution,
Article  5, Sec. 8; Vernon’s   Texas Code of Criminal Procedure,
Article 4. 05.

    A marihuanapossession      offense alleged to have occurred prior
to the effective date of the Texas Controlled Substances Act must
be treated as a felony unless and until the defendant elects to be
sentenced under the provisions     of the Act.

     Although the Court of Criminal Appeals has not yet indicated
whether the jurisdiction   of the district court is always exclusive  in
pre-August   27 marihuana possession      cases, it has held that the
district court retains jurisdiction   even when a motion to be sentenced
under the new Act has been filed prior to trial.     Jones v. State, supra.




                                       p.   1228
The Honorable   V. Murray    Jordan,    page 3        (H-262)




     Since, the district court is the court in which the motion must
be filed, and as Sec. 6.01(c) requires the motion to be filed in the
trial court, we believe that the Act contemplates    trial of pre-August         27
offenses in the district court.

     Another factor leading to the conclusion that the district court is the
proper court in which to prosecute      these cases,   is the inability of the
county court to enter a felony conviction.      There is a possibility   that
the defendant will not elect to proceed under the new Act or if he has
filed an election to so proceed,    there is a possibility   that his motion
may be withdrawn.      If a felony conviction  must be entered, it is
necessary   that the case be in the district court.

    Although we cannot say categorically    that a misdemeanor    conviction
for a pre-August  27 marihuana possession     offense entered by a county
court would be invalid in all cases,  it is our opinion that prudence and the
language of the statute indicate that these cases be tried in the district
court.

                             SUMMARY

            Trial of marihuana possession offenses alleged
        to have been committed prior to August 27, 1973,
        should be in the district court.

                                               Very    truly yours,




                                               Attorney    General    of Texas




DAVID M. KENDALL,        Chairman
Opinion Committee



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