                                The Attorney General of Texas
                                                   F~hruary 21,     1986
JIM MAlTOX
Attorney General



Supreme Court BulldlnO          Eonorable Dale Hanma                       Opinion No. JM-435
P. 0. Box 12548                 Johnson County Attwmey
Aus?,“, TX. 78711.2548          1st Floor, Courthouse                      Re: Responsibility  for notlficatlon
51214752501                     Cleburne , Texas   76031                   of defendants In criminal cases
Telex SlOI874~13B7
Telecopier 5121475-0286
                                Dear Mr. Hauna:

714 JacksOn. BUM 700                 YOU ask the fallowing   questions about notification            of misdemeanor
Dallas, TX. 752024508           defendants of cerl.ain criminal proceedings:
214i742.8944

                                               1. Vhoae     responsibility        is    it    to  notify
4B24 Alberta Ave., Suite 160               defendauta   and/or    defense attorneys         of criminal
El Paso. TX. 799052793                     miademerluor arraignment.         pre-trial,       and trial
91Y533-3484                                setting:,  in    the   district      court,     i.e.,   court
                                           secretary,   prosecutor,      district    courzerk,          or
 1001 Texas. Suite 700
                                           sheriff’s  office?
 Houston. TX. 77002.3111
 71312235886                                   2. ‘3oea the district    court have jurisdiction
                                           to order the prosecutors   office   to notify criminal
                                           defendants   of arraignment,    pre-trial,   and trial
 606 Broadway, Suite 312
 Lubbock. TX. 79401.%79                    settings?
 8oBl747.523B
                                                3.   Is a prosecutor    ethically    prohibited      by
                                            disciplinary    rule     DR-7-104     from      notifying
 4303 N. Tenth, Suite B
                                            defendants   of  such arraignmtnt,       pre-trial.      or
 McAllen. TX. 78501-1585
 512lW2-4547                                trial settings  after they have employed counsel?

                                       Tour request letter       poses the question     primarily   as a choice
  200 Main Plaza, suite 400      benreen the diatl:j.ct court and the prosecutor.        We note, however, that
  San Antonio, TX. 782062797
                                 jurisdiction    over misdemeanor cases is divfded between the district
  512!225-4191
                                 courts and the county courts according to the nature of the offense.
                                 See Code Grim. Pcoc. arts. 4.05, 4.07.          In Johnson County, the county
  An Equal OPportUnitYl          zrt     and the dil,trict   court have concurrent jurisdiction     over certain
  A,,,rmati”e Action Employer    misdemeanor cases.        See V.T.C.S.   art. 1970-335.    $2.   See generally,
                                 Regian v. Sowell~, 53S.W.2d          175, (Tex. Civ. App. - Waco 1976, writ
                                  ref’d n.r.e.).     %rctlon 3 of article     1970-355 provides that

                                            [t]he   District   Clerk of Johnson County shall
                                            continu’c to perform all the clerical functions of
                                            and for     the County Court of Johnson County,
                                            Insofar as all matters and csuses over which the




                                                              p. 1990
Honorable   Dale Hanna - Page :!           (JM-435)




            said   District    Court           and county     Court  have
            concurrent jurisdiction,            as hereinabove set out.

Consequently,   we address your question    solely                 as one between the
prosecutor’s  office and the court which properly                 has jurisdiction over
the misdemeanor case in question.

     Article      28.01 of    the Texas Code of            Criminal   Procedure   provides
for pre-trial      hearings   as follows:

                 Section 1. The court may set any criminal case
            for a pre-trial%aring        before it is set for trial
            upon its merits,-$d      direct the defendant and his
            attorney,     if   arp of record,      and the State’s
            attorney,    to appesr before the court at the time
            and place      statea  in the court’s       order   for a
            conference     and ‘Graring.     The defendant    rrmat be
            present at the arraignment,         and his presence is
            required     during any pre-trial      proceeding.     The
            pre-trial    hearinS shall be to determine any of the
             following matters:

                 (1)    Arraignwnt of the defendant,   if such be
             necessary;   and appointment of counsel to represent
             the defendant, i:i such be necessary;

                   (2)    Pleadings     of the defendant;

                   (3)    Special     pleas,   if   any;

                   (4)    Excepti’>us to the form or             substance   of
                the indictment or information;

                    (5)   Motions for continuance     either by the
                State   or defenclant;  provided  that grounds for
                continuance not existing   or not known at the time
                may be presented ,and considered at any time before
                the defendant announces ready for trial;

                    (6)  Motions to suppress evidence       -- When a
                hearing  on the motion to suppress        evidence   is
                granted,  the ccurt may determine the merits of
                said motion on the motions themselves,         or upon
                opposing   affidtwits,    or upon oral      testimony,
                subject to the discretion   of the court;

                   (7)     Hotionc for change of venue by the State
                or the    defendslt;  provided. however,  that such
                motions   for change of venue, if overruled at the




                                               p. 1991
Ronorable   Dale Banns - Page 3      (a-435)




            pre-trial hearing, may be renewed by the State             or
            the defendant during the voir dire examination             of
            the jury;

               (8)    Discovery;

               (9)    Entrapment; and

               (10)   Hotlon for appointment        of interpreter.

                Sec. 2. When a criminal case is set for such
            pre-trial     hearing,    any such preliminary        mattars
            not raised or filled seven days before the hearing
            will not thereaj’ter        be allowed to be raised         or
            filed,    except by permission of the court for good
            cause shown; Er:3”ided that the defendant               shall
            have sufficient       notice   of such hearing to allow
            him not less thh          10 days in which to raise or
            file such prelim:&ry         matters.    The record made at
            such pre-trial      t;aring.    the rulings of the court
            and the exceptions         and objections     thereto   shall
            become a part of the trial         record of the case upon
            its merits.

                Sec. 3. The notice             mentioned   in Section  2
             above shall bci.f  flcient         if given   in any one of
             the following wap:

                 (1) By announcement made by the court           in open
             court In the presence   of the defendant             or his
             attorney of recocfa;

                (2) By peracnal service           upon the defendant    or
             his attorney of record;

                 (3) By mail to either    the defendant or his
             attorney of record deposited   by the clerk in the
             mail et least alx days prior to the date set for
             hearing.   If the defendant    has no attorney    of
             record such notice shall be addressed to defendant
             at the address ,shown on his bond, if the bond
             shows such an a.ddress.    and if not,    it may be
             addressed to cm! of the sureties   ou his bond.   If
             the envelope wntaining     the notice   is properly
             addressed, atamlbed and mailed, the state will not
             be required to chow that it was received.
              (Emphasis added: .




                                          p. 1992
Elonorable Dale panna - Page 4       (311-435)




See generallg   Barbee v. Stafc,   432 S.P.2d     78 (Tax. Grim. App.     1968),
cert. denied,   395 U.S. 924 ;1,969).

       Section 1 of article     2!),01 states that the court shall direct the
defendant,    his attornay,     and   the state’s    attorney to appear at pre-
triel    hearings.     Article    Zl8.01 also     authorizes  three methods of
notification:            “[b]y   announcement made by the court,”      (2) “[bly
personal aervicil) ” or (3) [‘bjy mail . . . deposited by the clerk.”           We
conclude that &is langua8e places the responsibility               for notifying
defendants of pre-trial        hearings upon the court rather than upon the
prosecuting    attorney.

       Other provisions      in tlw Code of Criminal Procedure support this
conclusion     and suggest that the court must also notify defendants of
trial    settings.     Chapter 2 of the code, articles     2.01 through 2.24,
sets forth the duties of magistrates , a term which includes county and
district     court judges.     Set Code Grim. Proc. ert. 2.09.    These ducira
include the issuance of xi         process Intended to aid In prevent1r.g end
suppressing      crime.    Id. a:%. 2.10.    Article 2.21(a)   of the Code of
Criminal Procedure provides3 for the general duties of court clerks as
follows:

               Each clerk   of the district    or county court
            shall receive an3 file all papers and exhibits    in
            respect to criminel proceedings,  issue all process
            in such csses,     and perform   all   other duties
            imposed upon then by law.

 In contrast,     the provisions     of the code vhf& set forth the dutlex of
 prosecutors,      see arts.      2.01-2.08,    neither    require  nor suthorize
 district    attorneys,   count]’ attorneys.     or criminal district    attorneys
 to issue or execute process.          Consequently.    the court, rather then the
 prosecutor.     has the reapo~~rribility to notify defendants of pre-trial
 hearings     and trial    settings.      -See Attorney General. Cpinion O-5694
  (1943).

        Your second question requires       consideretlon     of whether the court
 holds the power to fulfil:l       fta responsibility      to notify defendants by
 ordering    the prosecutor’s,     office  to carry out these duties         of the
 court,   a.      by ordering    the prosecutor’s      offlce   to execute process
 issued by the court.          AE indicated.     the code imposes no duty on
 prosecuting     attorneys   to uotlfy    defendants of pre-trial       proceediner
 and trial    settings.    See Xncan V. State, 67 S.W. 903, 905 (Tex. Civ.
 App. 1902, no writ); cf.‘ -- ?aulder     v. Dill,    612 S.b.2d 512 ITex. Grim.
 App. 1980).

       t!oreover , the authority   of the court to direct persona to serve
 process depends primarily      on the statutes vhicb djrect the method of
 service.     Article 2.13 of the Code of Criminal Prccrdure provides that



                                        p. 1993
Honorable Dale Banns - Pago 5           (m-435)




every peace officer.        as de,Eined in article         2.12. "shall      execute all
lawful process issued to Mm by any magistrate or court."                         See also
Code Grim. Pro. art. 2.1(,.            A prosecuting       attorney  is not incltided
within    this definition       ot "peace officer."            The official       duty to
execute service of process issued by a magistrate falls upon sheriffs.
See Code Grim. Proc. arte,. 2.12,             2.13; Eeary S. Wlller           Company v.
-c.      452 S.W.2d 426 (Twt. 1970); Grass v. Grass. 608 S.W.2d 356
 (Tax. Clv. App. - Dallas 1380, no writ);            Cook v. Jones, 521 S.U.2d 335
 (Tcx. Civ. App. - Dallas 1975, writ ref-'d n.r.e.); Attorney General
Opinion E-595 (1975).           Although the court may direct             persons other
 than sheriffs   to serve prwess          in some circumstances,        this authority
 does not properly      extend t#D prosecuting         attorneys.    Consequently,      we
 do not believe        It    is    sppropriate     for    the court      to order      the
 prosecutor's   office      to notify      misdemeanor defendants          of pre-trial
 hearings and trial      settings.

      Tour final     questiorl     is vhether   a prosecutor     is ethically
prohibited  from notifying      misdemeanor defendants of pre-trial  hearings
and trial  settings   by DR-"-104(A) of the disciplinary      rules governing
the State Bar.     V.T.C.S.    .%rt. 320a-1, Title 14. Appendix A. art. 12,
18. Rule DR-7-104 states:

                 (A) During the course of his representation              of
             a client a 1awyc.r shall not:

                     (1)   Conam.nicate or cause another to com-
                     municate   on the subject of the representa-
                     tion with'?. party he knows to be represented
                     by    1awyc:r in that matter unless he has the
                     prior   cor,sent of the lawyer representing
                     such other party or is authorized by law to
                     do so.

                     (2)   Give advice to e person who is not
                     representc:d    by a lawyer,    other  than the
                     advice to-secure     counsel,  if the interests
                     of such person are or have a reasonable
                     possibility     of being in conflict   rZth the
                     interests    of his client.   (Emphasfs added).

 Rotifvina    a defendant of the need to auuear ..     in court is not a corn-
 munication     Non the subject      of the representation"      prohibited   by
 DR-7-104(A)(l).       See gencEally Pannell v. State, 666 S.W.2d 96 (Tex.
 Grim. App. 1984); Renrlcliv.        State, 694 S.W.2d 341 (Tax. Grim. App.
 1985); State v. Lemon, 6011 S.W.Zd 313 (Tex. Civ. App. - Amarillo 1980,
 no writ).      Such "advice"     is more akin to advising      a def&ndant to
 secure counsel.        Conseqwntly.   we believe   that a proescutor     is not
 ethically    prohibited   by DX-7-104 from notifying    misdemeanor defendants
 of pre-trial    hearings and trial settings.




                                           p. 1994
Ronorable   Dele llama - Page 68 (JM-435)




                                     SUUMARP

                Article  28.01 of the Texas Code of Criminal
            Procedure provide:, that the court has the rrspon-
            sibillty    to    notify    defendants   of     pre-trial
            hearings.    The court also has the responsibility
            to notify      defet,dants   of   trial   settings.       A
            prosecutor,    however, is not ethically      prohibited
            from notifying      de:Eendants of pre-trial     hearings
            and trial   setting:,.,




                                                J b
                                                  Very truly   your


                                                         AA
                                                  JIM     MATTOX
                                                  Attorney General of Texas

 JACK HIGRTOWER
 First Assistant Attorney     General

 MARYKELLER
 Executive Assistant     Attorneg    General

 ROBERTGRAY
 Special Assistant     Attorney     General

 RICK GILPIK
 Chairman, Opinim      Committee

 Prepared by Jennifer Riggs
 Assistant Attorney General




                                               p. 1995
