Hon. Jean Day                Opinion No. O-,+11
County Attorney              Re: Filing of criminal cases in
Henderson County             various justice   precincts of county
Athens, Texas                by constable,   and related matters.
Dear Sir:

              Your request for opinion has been received and care-
fully    considered by this department.   We quote from your re-
quest    as follows:
                “Would   you please   advise   me on the follow-
        ing :
              ‘Constable   of ?recinct #8 catches dice shoot-
        ers in Precinct $4 and files    complaintagainst    them
        in Justice precinct    21 where they plead guilt ;.< and
        pay fine.    Justice of the Peace of ?recinct    ii de-
        mands the Justice fees in the cases.      Should he re-
        ce ive them.
              “What is then present     law on where a Constable
        can f lie his cases.”
             Articles    6885 and 6889, Vernon’s       Annotated Texas
Civil    Statutes,   provide:
              “Art. 6885.   Each constable   shall execute and
        return according to law all process,      warrants and
        precepts to him directed    and delivered   by any law-
        ful officer,  attend upon all justice     courts held
        In his precinct   and perform all such other duties
        as may be required of him by law. I’
              “Art. 6889. Every constable     may execute any
        process,   civil or criminal,  throughout his county
        and elsewhere,   as may be provided for in the Code
        of Criminal Procedure, or other law.”
                 The constable is a peace officer.  See Article      36,
Vernon’s        Annotated Texas Code of Criminal Procedure.
           Article 37 Vernon’s Annotated Texas Code of Crlmi-
nal Procedure, provides that “It is the duty of every peace
Hon. $ean Day, page 2


officer      to preserve   the peace within     his   jurisdiction.”
               “Article    632, Vernon’s Annotated Texas ?enal Code,   re-
ferring      to violations    of the gaming laws, reads as follows:
                 UWhenever It comes to the knowledge of any
          sheriff,   or other peace officer,     by affidavit  of
          a reputable citizen,    or otherwise,    that any provi-
          sion of the preceding articles      of this chapter is
          being violated,    such officer   shall immediately
          avail himself of all lawful means to suppress such
          violation;   and he shall be authorized,      by any
          search warrant that is Issued by virtue of this laid,
          to enter any house, room or place to be searched,
          using such force as may be necessary to accomplish
          such purpose .I’
          Article   633, Vernon’s Annotated Texas Penal. Code 9 pro-
vides for the issuance of a search warrant and arrest warrant
for gaming violations.
            Article   223, Vernon’s Annotated Texas Code of Crimi-
nal Procedure,   relates to a “Warrant of arrest” and provides
that such a warrant:
                “Issued by any county or district  clerk, or
          by any magistrate (except county commissioners or
          commissioners court, mayors or recorders of an
          incorporated  city or town), shall extend to any
          part of the state; and any peace officer    to whom
          said warrant is directed    or into whose hands the
          same has been transferre d shall be authorized to
          execute the same in any c&nty in the state.”
            The case of Henson v. State, 49 s.W. (2d) 4630 holds
that Article   223, V.A.T.C.C.P., authorizing the sheriff to serve
warrants outside his county does not extend his authority   to
arrest without a warrant outside the county, and that a sheriff
and deputy making an arrest and searching an automobile outside
the county without a warrant stand in the same relation   to search
as private citizens.
           Opinion No. O-1240 of this department holds that a con-
 stable has the authority to execute a warrant of arrest not only
 in every precinct within his own county, but as well in any
 county in the State, and is entitled  to the fees and mileage pro-
 vided by law therefor.
                We quote from 38 Tex.   Jur.,    ‘p. 434:
Hon. Jean Day, page 3


           "The power of arrest possessed by a constable
     and a city marshal1 also extends to the whole coun-
     ty, and beyond when acting under a lawful warrant,
     since they are peace officers."     (Citing the case
     of Newburn v. Durham, 31 S.W. 1951

           This department has repeatedly    held that a constable
has authority   to make arrests without warrant (in the instances
provided by law) anywhere In his county either in or outside
his own precinct.    See the following  opinions:

            Opinion dated May 21, 1931, wrltten by Hon. E. F.
Johnson,   Assistant Attorney General, addressed to Hon. H. G.
Bennett,   County Attorney, Dumas, Texas.

           Opinion dated October 13, 1938, written by Hon. R. E.
Gray, Assistant   A ttorney General, addressed to Sheriff Tom
Abel, Lubbock, Texas.

          Opinion No. o-1565       of this   department,    dated Novem-
ber 24, 1939.
              Opinion No. 0-3969 of this     department,    dated October
1, 1941.
              k'e quote from Opinion No. 0-3969      of this   department
as follows:
             @'You are respectfully     advised that it is the
      opinion of this department that a constable             may law-
      fully make an arrest in a precinct        other than his
      own in his county without a warrant when he would
      be authorized     by law to make the arrest without war-
      rant in his own precinct;        and that while it is his
      primary duty under Article        37, V.A.T.C.C.P.       to pre-
       serve the peace within his own precinct,          st i 11 his
      jurisdiction     is co-extensive    with the limits of the
      county.      It also follows that the constable would
      have authority to execute warrants of arrest any-
      where In his county.
            "It Is also our opinion that the constable
      would have authority to file complaints upon the
      arrests   described in your letter in the justice
      court of the precinct where the offenses   were COW
      mitted.
             "It is our further opinion that the c~onstable
      may execute warrants of arrest anywhere within the
      State."
                                                                        * 7~
Hon. Jean Day, page 4
           Me quote from the opinion of the Te:ias Court of Grim-
lnal Appeals In the case of Ex parte Von Koennerlts,   286 3.W.
987, as follows:
             “This Is a dual actloll,   in whlzh the applicant
     seeks the writ of habeas corpus        releasing him from
     -rre st and also seeks a writ 01. prohibition         against
     J. C. &rch,     justice   of the peace of precinct No. 6
     of Travis county, Tex.        He asks that we Issue a writ
     of prohibition    prohibiting    the said J. C. &rch,
     ju:.tice   of the peace as aforesaid      from trying him
     on a certain complaint which has       been  filed against
     him in the justice      court over which tha said Burch
     pre sides.    He attaches a copy of the complaint un-
     der which he is held, and this complaint alleges
     that on the 15th day of January, 1920, the appli.cant,
     in Travis county, Tex., did unla&ully          end iJillfully
     drive and operate a certain motor vehicle along ‘:~nd
     upon a certr;iin public highway, to wit, ::long and
     upon 5outh Congress avenue, a street within the cor-
     porate limits of Austin, TeX., an lncsyporated           city,
     at a greater rate of speed than 25 mills per hour,
     etc.
            “It is appellant’s    contentton that the justice
     of the peace in precinct      NC. 6 is withot? jurisdic-
     tion to try said case, In view of the :‘i:ct, as appei-
     lant contends, that the offense was con,iiltted,         if at
     all,   In precinct No. 3 in Travis county.        :1e do not
     agree with applicant’s      contention that the alleged
     anticipated    trial  of the applicant before the justice
     court of precinct     No. 6 would be a mere nullity.         His
     action in the event of a trial,        in our judgment,
     would not be void.       Under the plain terms of the stat-
     ute itself,    the justice   of precinct No. 6 has juris-
     diction    of the subject-maeter     of the suit.    Article
     60, 1925 Revision CL.?.
           “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 unnecessary to dacide
     in this case, it would still     follow that such right
     would not render the trial     of the cause in justice
     precinct   No. 6 void.    Suppose tha right to be tried
     in the urecinct where the offense was committed was
     undisputed,   yet for some reason applicant should not
     see fit to assert this right and should plead guilty
     in a justice   court situated in a precinct different
     from the one ,in which the offense was committed; could
     it  be contended that a valid judgment could not be
     rendered ag.ainst him under these conditions?      ivi think
     not.    The Court cf Civil Appeals in this state haz, ~5
     think, correctly    stated ;he rule as follotis:
1 Hon. Jean Day, page 5


            “‘The word “void!’ can with AO propriety       be
      applied to a thing which appears to be sound, and           :,
      which while in existence      can command and enforce
      respect,   and whose. Infirmity. cannot be made .mani-
      fest.    If a judgment 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 on the record, it is no
      more void than if it were founded upon a mere mis-
      conception    of some matter of law or of fact occur-
      ring in the exercise     of an unquestionable    jurisdic-~
      tion.    In either case the judgment can be avoided
      and made fun&&s officio       by some appropriate    pro-
      ceeding instituted    for that purpose; but If not so
      avoided, must be respected       and enforced. 1 Dunnv.
      Taylor, 42 Tex.Clv.App.~ 241, 94 S.;.;‘. 347.
            “The anticipated   action of the justice  of the
      peace of precinct    No. 6 being in no event more than
      voidable,  applicant   is not entitled~to  the relief
      sought.
            “(The doctrine   is well settled,   in this state
      at least,  that if the proceeding under which a. per-
      son is held in custody and restrained      of his lib-
      erty is merely voidable,    he cannot be released on
      habeas corpus, but must seek his remedy in some other
      manner. The ordinary mode of seeking redress against
      a voidable judgment in a criminal proceeding would
      be by appeal.    The ,wrlt of habeas corpus was never
      designed to operate as a writ of error, a certiorari,
      or as an appeal.’     Ex parts ~Doland 11 Tex. App. 159;
      Ex parte McKay 82 Tex.Cr.Ri 221 199 S.Y. 6370 Ex
      part0 Japan, 38 Tex.Cr.R. 482 38 S.W. 43, and?many.
      other cases ‘cited in these aut horlties.              _, .~

             “The matter in controversy     being one in which
       the justice    of the peace has jurisdiction    of the
       subject-matter    involved, owe will  notdecide   ,questions
       of practice    in an action of this character that, Mayo
       arise on the trial of the case.       As stated b Judge
       Henderson in Ex parte Windsor (Tex.Cr.App.)7 r3 S.W.
       90:
            “‘We will not assume that the court below will”
       not properly administer the law, and will not.-deter-
       mine questions presented to it, in a legal and proper
       manner.’               _:
Don.   Jean BY,    page 6


              “.vor the reasons above stated   the writ of
       hapu;,‘d;trpus   and the writ of prohfbltlon  are both

             Article    1052, Vernon’s    Annotated Texas Code of Crim-
inal   Procedure,    re.ads as follows:

              “Three Dollars lihal.1 be paid by the county to
       the County Judge, or Judge of the Court at Law
       and Two Dollars and fifty        cents shall be paid gy
       the county to the Justice of the Peace, for each
       criminal action tried and finally          disposed of be-
       fore him.       rovided,   however that in all counties
       having a population       of 20,OOb or less, the Justice
       of the Peace shall receive         a trial fee of Three Dol-
       lars.     :juch Judge or Justice shall present to the
       Commissioners’ Court of MS county at a regular
       term thereof,      a written account specifying      each
       criminal action in which he claims such fee, certl-
       fied by such Judge or Justice to be correct,           and
       fllsd with the County Clerk.           The Commissioners’
       Court shall approve such account for such amount
       as they find to be correct          and order a draft to
       be issued upon the County sreasurer in favor of
        such Judge or Justice for the amount so approved.
       i‘rovided the Commissioners~ Court shall not pay any
        account or trial fees in any case tried and in which
        an acquittal     is had unless the State of Texas was
        represented    in the trial    of said cause by the COW+
       ty Attorney       or his assistant      Criminal District   At-
        torney or d s assistant,       and t he certificate    of said
       Attorney is attached to said account certifying            to
        the fact that said cause was tried,          and the State
        of Texas,was represented         and that In his judgment
        there was sufficient       evlAence in said cause to de-
        mand 8 trial. of same. (As amended Acts 1929 41st
        Leg.    p. 239 ch. 104 1 1. Acts 1929, 41st tee.,
        1st 6. S., p! 155, ch! 55,’ i 1.)”
              Article   1011, Vernon’s    Annotated Texas Code of Crimi-
nal    procedure,    reads as follows:
             “No item of costs shall be taxed for a purport-
        ed service which was not performed    or for a service
        for which no fee is expressly  provided by law.”
            Under the facts stated the dice shooters pleaded guilty
 In Justice  Precinct No. 1 end paid their fines.   Under Ex part0
 Von Koenneritz above cited such judgments are not void for such
.   -



    . Hon. Jean Day, page 7


        justice  court had jurisdiction.     The Justice of the Peace of
        ?recinct  No. 1 who accepted the pleas of guilt is entitled    to
        the fees provided by Article     1052, V.A.C.C.P., supra.

                    The Justice of the Peace of ?recinct  No. 4~ not hav-
        ing tried   the cases, is not entitled to any fees whatever.

                     With respect to your question as to where the con-
        stable can file his cases         such question Is rather broad.     As
        pointed out above, under c he facts given in your letter,         the
        convictions    in justice    precinct  No. 1 were not void.    The de-
        fendants pleaded guilty,       paid their fines and did not file mo-
        tions to transfer     their cases to justice     precinct No. 4.   As to
        whether such motions to transfer        would have been good If made
        is a question raised in the Ex parte Von Koennerits case but
        not decided in such case.         The constable also could have filed
        the gaming cases directly        in the county court as that court
        had concurrent    jurisdiction     with the justice   court of said of-
        fenses.     (See A rticle    V, Section 15, Constitution    of Texas.)
                    In this connection we wish to call to your attention
        the provisions    of House Bill 342 of the 48th Legislature  of
        Texas, effective    August 10, 1943.  We quote from Volume 5, Ver-
        non’s 1943 Texas Session Law Service,    48th Legislature,  Regular
        Session,  pages 424-425, as follows:

              “Be it enacted   by the Legislature    of the State   of
                    Texas:
                     “Section 1. No person shall be tried In any
              misdemeanor case in any Justice Precinct Court ex-
              cept in the precinct      in which the offense was com-
              mitted, or in which the defendant resides;        provided
              that in any misdemeanor case in which the offense
              was committed in a precinct       where there is no quali-
              fied Justice Precinct Court, then trial        shall be had
              in the next adjacent precinct        in the same county
              which may have a duly qualified        Justice Precinct
              Court, or in the precinct       in which the defendant
              may reside;    provided that in any such misdemeanor
              case    upon disqualification     for any reason of all
              Justices    of the Peace in the precinct where the of-
              fense was committed, such case may be tried in the
              next adjoining     precinct   in the same county, having
              a duly qualified     Justice of the Peace; provided
              that, upon agreement between the attorney repre-
               senting the State and each defendant or his attor-
              ney, which said agreement shall be reduced to writ-
              ing, signed by said attorney representing        the State
Hon. Jean Day, page 8


     and each defendant or his attorney,     and flled in
     the Justice Court in which such alsdemeanor case
     is pending the Justice of the Peace before       whom
     such case 1 s pending may In KS discretion,
     transfer   such cause to t he Justice Court of any
     other precinct   in the same county    named in such
     agreement; provided that In any m!sdemeanor case
     in the Justice Court, In which two (2) or more de-
     fendants are to be tried jointly,     such case may be
     tried in a Justice Court of the precinct where the
     offense was committed, or where any of the defend-
     ants reside.
           “Sec. 1-A.  No constable shall be allowed a
     fee in any misdemeanor case arising In any precinct
     other than the one for which he has been elected or
     appointed,  except through an order duly entered upon
     the Minutes of the County Commissioners Court.
            “Sec. 1-B. Any Justice of the Peace, Constable,
     Deputy Constable,   Sheriff    or Deputy sheriff  either
     elected or appointed,   vlo 1.atlng any provision of
     this Act shall be punished by fine of not less than
     Gne Hundred Dollars   ($100) nor more than Five    Hun-
     dred Dollars ($500) .aod shall be subject to be re-
     moved from office   by action brought in District     Court
     for that purpose.

            “Sec. 2. All laws and parts of laws in conflict
     herewith are hereby repealed to the extent of such
     conflict.
             “Sec. 3. The fact that many persons are dally
     being prosecuted for misdemeanors in Justice Courts
     at considerable     distances from their homes and from
     the precincts     in which the offenses   were committed,     .
     for the purpose of inducing such persons to plead
     guilty,    creates an emergency and awlmperative      pub-
     lic necessity     that the Constitutional   Rule requiring
     bills    to be read on three several days ineach House
     be suspended      and said Rule is hereby suspended, and
     this Act sha 11 take effect     and be In force from and
     after its passage, and it is so enacted.
          “Passed the House, April 7 19438 Yeas 125,
     Nays 18; passed the Senate, Aprfl 29, 1943, by a viva
     vote vote.
           “Approved May 6, 1943.
. ., -




         Hon. Jean Day, page 9


                    ‘%ffective    90 days after       May 11, 1943,   date
               of adjournment .‘I

                   When House Bill No. 342, supra becomes effective
         on August 10, 1943 it will    control lnso i ar as the filing of
         misdemeanor compla&ts   In ~justlce courts are concerned.
                     Trusting   that   this   satisfactorily     answers your ln-
         qulries,   we ape
                                                    Very truly   yours
                                                    ATTORNZYGHNFRALOF TEXAS

                                                    By /s/ Wm. J. Fanning
                                                    Wm. J. Fanning, Assistant

         APPROVEDJIJL1, 1943
         /s/ ‘Jim. J. Fanning
          (Acting)  ATTCRNZYGENERAT.
                                  OF TEXAS
         APPROVZD:OPINIONCOMMITTZ
         BY:      Bii, CHAIRMAN
         WJF: db:wb
