                OFFICE OF THE ATTORNEY GENERAL             OF TEXAS
                                        hUBTIN

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Honorable  Edgar    A.   Maddox
County Attorney
Palo Pinto County
Palo Pinto, Texaa
Dear 31x-r                        Opinion Iio.o-3970

                                  Rer   (1)   Is it lavful an4 proper
                                        for   a justice   of the peace
                                        sitting   a8 a coPm1telng
                                        magistrate     to accept com-
                                        plaint and lsaue 6 warrant
                                        of armat for an offense
                                        that 1s vlthln the juriw
                                        diCtAOn    of the oounty court
                                        of the county?
                                        (2) Should not the complaint
                                        issued  by a justice  of the
                                        peace in the above rituatlon
                                        be fllod upon his examining
                                        trial docket and then trsa-
                                        mltted to the Countg Clerk
                                        after examining trial   is had
                                        or valverl?

             ¶‘hls is to acknovledge your latter       requesting   our
opinion    upon the questlone stat& above.
          ,In examining the authorities   relative to the first
question,  we find the follovl~   statement by Judge Brooks of
ths Court of CrimLnal Appeals in the case of Llndley vs. State,
57 Tex. Cr. R. 346, 123 3. U. 1411
              “Ue find but one bill of exception   ln the
        record, vhloh complains that the affidavit    in
        this case, upon vhlch the lnformatlon VBE filed,
Honorable       Edgar A. Maddox,   Page 2



       was taken before       the justice of the.peaoe       for
       precinct    lo. 1, and delivered     to the county
       attorney,     end the county attorney     flied   an
       information     on it.    This is clearly     author-
       imd by the laws of this state.”

                The Llndley  case WRB followed in the cast of Duncan
vs.   Stat/s,    132 Tex. .Cr. R. 612, 279 S. V. 4,jY’. Sea also, Gentry
ve.   State,     62 Tex. Cr. R. 497, 137 5. W. 696.
          From a reading   of the above cited    casts it 1s clear
that it la lawful  and proper for a juatlce    of the peace to ac-
cept a complaint  for en offense   that 1s wlthln    the jurisdiction
of the county court.   See Article    415, Code of Criminal Procedure.
             Upon acceptance   of the complaint,   It is the duty of            the
magistrate     to issue a warrant for the arrest     of the accused.            See
Article    223, Code of Crlmlnal   Procedure.    Your first  question           1s
therefore    answered in the afflrmatlve.

            The wnrrant of arrest    is executed,    as provl4ed   by Ar-
ticle  333, Code of Criminal Procedure,      by the offlccr     or other
person  to uhom lt 1s directed,     taking the person charged forth-
with ‘before    the maglntrate   who issued  the warrant,    or before
the magistrate    ncmed ln the varre.nt.”    Article   245, Code of Crlm-
inal ProceBure,    reads as follows%

              %hon the accused has been brought before
       a lnnglstrate,     that officer    shall    proceed to
       oxamlne into the truth of the accusation            mndc,
       allowing    the accusetf,    however,    sufflolont   tlnc
       to procure     counsel.

              The accused may waive the examination              allude4    to in
the above statute.           If he does waive, the ma&lstrnte           should
require     a proper bond and transmit         the complaint       to the county
attorney,     who ahould prepare and fllc          an information      based upon
the complalnt.        Both     the complaint   and   lnformatlon     shvuld    be
filed    in the county court.         If, upon the examfnation          the megls-
trate    is satleflcd      from the evidence      that St is probable        that
the accused      is guilty      of an offense   of which the county court
has jurisdiction,        it 1s the duty of the justice           of the peace to
send the whole case to the county court,                even though the com-
plaint     contnirs some counts      ot’ whi.ch the justice      court would have
jurlndlctlon.        See the oane of Rx parte Holcomb, 63 Tex. Cr. R.
204, 131 S. w. 634, where a writ of habeas corpus was sought on
Honorable    Edgar     A. Maddox,   Page 3



the iround that the county oourt had no jurlrdlotlon        of the
oaao, filed originally  :n the jurtloe  0ourt;and   vhioh vaa
transferred to the county court following    an examining trial.
The Court of Criminal Appeal8 hold the relator     entitled    to
no relisf, saying the above prooedure   u&s propor.

             The oass of Wronn VB. State,         82 Tex. Cr. R. 642,
200 S. Ii! 844, approves      the prooedure     of the justloe    of the
psaoe aoceptlng      a complaint     and making the varrant     of arrest
rsturnable      to the county oourt.       In that oaao the sheriff     made
the affidavit      on a Sunday, the Oomplaint oharglng         the defend-
ant vlth gaming.       The justice of the peats transmitted         ths oom-
plaint    to tha county court the next day, and on said date (Mon-
day) the oounty attorney        fllod   hia information,   based upon the
complaint     sworn to before     the jurtioe   of ths peace;    appeal vas
perfected     from the judgment of the county oourt,         but the ap-
pellate    court held there vas no error, approving          the procedure
followed    in the lowsr oourts.

             In tmow4r to your second queatlon          it la our opinion
that the justice       of the peaob, when sitting       aa a maglatrato    to
hold an axamlning trinl,         should file  the complaint,      issue the
varrant   and other prooom, and note the aHme upon his examin-
lng trial    dookct.     Upon waiver by the aocused,        or detormlna-
tlon by the juatloo       of the peaoe that accused        should be held
to answer to the oounty Court, all papers in the case should
be forthvith     foxwarded   to the oounty clerk      for proper notion
in the premises.        The county attorney     should then prapare his
informatlon$     lf the justice     court complaint     is otharvise    In
propsr   form, the cam lr then rsady for trial            in the county
court.    A POV complaint      Is unnocosaary    nnd the defendant      is
bound to appear upon his bond made in response              to the order
of the justice      court binding     him to the county court.

             Trusting     the   above   fully   ansvera   your   inqulrlea,   w4
ar4

                                                   Yours very truly




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        : “‘Zkh4L                                         Benjamin Woodall
                                                                  Assistant

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