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                           February 9,~ 1966


    Honorable D. Brooks Corer, Jr.         Opinion 190. (C- 602)
    District Attorney
    Brazoe County Courthouse               lb:   Validity of Artlclce
    Bryan, TPb*as-                            4.12 and 45.22, Code of
                                              Crim$nal P+oceilure of
    Dear Mr. Gofer:                           Texas, 1966.
         In a tecent opinion requcet of this oifice        you pore
    the folloring  question:
                     "Does Article 4.12, Code of CrQninal
                      Procedure of Texas, 1966, conflict   with
a                     Article V, Section 19, constitution   of
                      the State of Texas, and doee Article
                      4.22, COF, 1966 also conflict with the
                      a-0 constltutlonal  prov1610n.n
            Articl~e V, Section 19, Conrrtltution of the
    Taas,     provides  aa follows:
                     "Suetime of the Peace shall have
                      isdiction  in _crlmlna~~matte~~ of,
                      came4 wncre me penarty or rune to 08
                      lmpo8ed by law may not be more than
                      t*o hundred dollar8 ($200); and in
                      civil mattema of all case8 where the
                      aaount in controversy is two hundred
                      dollaria ($200) or Lena, exclusive ai
                      intermt,   or which 0rigLnal jurie&$gW~
                      Is not given to the district    or counfa
                      courts; and such other jurisdiction      18 aof
                      given M the district     or couaty.courtaj
                      and lruch o%her jurlrdictlon,   crinznsl
                      and civil ae may be provided by law,
                      under such regulations as MY be prs-
                      scribed by law; . . .."
         Article 4.12, Vernon's Code of Criminal Procedure, 1966,
    the ?lret Art+18 about which you inqulrs otaten a@ follovr:
                      “A aisdemetmor  case to be tried in jootice
                       court shall be,trled  in the precinct ia
                                  -asi%%
                    .
                                   Jlmorable D. Brooks Gofer,   Jr.,page         2   (C- 602)


                                               which the offense wae comalttsd,    or In which
                        .,                     the defentit    or any of the dafendantb reside,
                                               or ulth the written conrent oi tl5e.state and
                                               each defendant or hi&attorney,     In any other
               ‘:                              precinct within the county; provided that in
                                               any tiedemeanor case inwhIch the oifenee was
                                               committed in a precinct where there Is no
                                               qualified justice precinct court, then trial
                                               shall be had in the next’adjacent precinct
                                               in the same county uhlCh ry have a duly
                                               qualified juetlce preclact   court, or in
                    ,.                         the precinct in uhlch the,dofenAant may re-
                                               side; provided that In any such rledemeeaor
                                               case, upon diequalification   for any reamon
  .~a                                          of all juatlc+u or the Peace in the precinct
                                               where the, offenee ma.ctitCed,      such ca8e
                                               may be trfed ln the next &lJoiaking proclnbf
                             .y



      :                                        in the am@ comity, haviq     a Auly ~quallfled           .
                                               jUatic0 of tti peace.”
                                          It rhould iiret be noted tht Article 4.12, is very.
                ‘.                 ‘~l8llu   to the article, $n the old Uods ,of Cri8lnal ProceAlwe,
                                    6Oa,. Code of Crdalnal Procidure, 192$.uh$ch lt,repl+ce&
          .,                        Althgugh the wadlag of these two rentloned article6 16 .,
                                   -ao&that di??erent,     the Intent ot~.each is to acocimplleh
                                   .the mm pxirpom, xumely, setting out rules dorarrdly’the
               _~                  precinct In rhich a miudemeanor~case      oa the justlce court
      .                             level would be trioA. 39828oftier oa bt lea& two eeparate
                                    occ~eionr har, hold Article 6Oa, to be uaconrtitutioaal.
                                    OpMonIlo.    O-&hb,lg45,     andOpinloaXo.V+6,1$&8.
                                          The above quoted Article 4.l2,.preicribes       certaln
                                    llmitatloar    upon~the authority    of ju6tice courts to try
                                    misdewnaor ca6oa, and It seem&to forbid the trial of ury
                  ..,’              m%rAenaaor canes by ~jwtlce court8 outeide end beyond the
               .. . .               llmltatlonr    aet Sorth therein.      In eramace, the purpose of
                                    this article is to prohibit or forbid justice cot&r from
                                    trying misdemeanor cases when the cat88 doer not arrivs or
                                    oc~~;~~t& the juetlce court lri a manner prescribed in the
 ,.,;
                ,’
                         .
                                                 In the case of Ex part& Von Koenmrltc, 286 Sl? 987
                                    (Tex. C&m. App. 1926) the court II ld tn&t R JUeti0.e of the
                                    peaoe court ha@ the’authoz%ty tout& a caei rihfc~zuose ,Sn
                                    mothor prwlnct in the county, even though bhe det6adaat had
                                    the uad%sputed right to have the CWQ tried in another precinct.
                                    Article 4.12, would p&aadeccrtaln Umltatlons upon this
                                    jurlrdlction    of justice courts , and therefore It ~1s the
                                    opinion of this office that Article 4.12 ia unconstitutional
                                    eince It contravenea the provisione of Article V, Section 19,
                                  ’ Constitution OS Ths State of Texas.
                                                                  .-2926”.
  .      :.
     I... ,z.
   .L ‘.
..~ .,
                                                                           ,L,        -
     Honorable D. Brooks Cofar,   Jr.,page   3   (C-602)



           Your next Inquiry Is with regard to Artlcle,45.22,   Code
     ;~~;~lnal    Procedure, 1966. Said Article provides as
              :
               "Section 1. No person shall ever be tried in
                any justice precinct court unless the offense
                with which ho was charged was committed in
                such precinct.    Provided, however, should there
                be no duly qualified    justice precinct court in
                the precinct where such offense was committed,
                then the defendant shall ba tried in the justice
                precinct next adjacent which may have a duly
                quall?lad justice court.      And provided f'urther,
                that if the justice of the peace of the pre-
                cinct in which the offense was committed is
                diequallfied   for any reason for trying the case,
                then euch defendant may be tried in some other
                juetice precinct within the county.
               "Section 2. No constable shall be allowed a
                fee In any misdemeanor caao arising in any
                precinct othor than the one for which he has
                been elected or appointed, except through an
                order duly entered upon the minutes o? the
                county comlrslonsrs  court.
               wSectlon 3. Any justice o? the peace, constable
                or d6puty conetsble violating this Act ehall
                be punlehed by a fine of not lose than #lOQ
                aor more than $500.
               "Section 4., The provisions OS this Article shall
                apply only to counties having a population of
                225,000 or over according to the,laet preceding
                federal cennsue.n

           Incur opinion the same reasonzi.ng set out above with re-
     gerd to Article 4.12 applies when considering Article 45.22,
     It is our opinion, therefore,   that Article 45.22, is alao
     unconefltutlonal  since it contravenes the provisions of
'5   Article V, So&ion 19, Constitution of the State of Texas.
     Prior Attorney OeneralQe opinlone O-6940 (1945) and V-496
     (1Pw are aifirred and enclosed hersuith.
                           BUMWARY
                           -------
               Article 4.12 and 45.22 Coda of Criminal
               Procedure of Texae, 1966, are unconetitutional
               eince they contrave e.the provlsione of
                               -293-
sfonorable D. Brooks Corer, Jr.,   page 4    (c-602)


          Article V, Section 19, Constitution       of the
          State OS Texti.,,
                                Your8 very truly,
                                WAOOOVBRCAm'
                                Attornq General of Texae


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