                               ATTORNEY GENERAL OF TEXAS
                                             GREG       ABBOTT




                                                 July 16, 2009



The Honorable Joe Black                                Opinion No. GA-0728
Harrison County Criminal District Attorney
Post Office Box 776                                    Re: Whether a judge of a statutory county court, the
Marshall, Texas 75671-0776                             jurisdiction of which is limited to misdemeanor
                                                       cases, is among the group of judges described in
                                                       section 76.002 of the Government Code
                                                       (RQ-0782-GA)

Dear Mr. Black:

        You ask whether

                 a judge of a County Court at Law the jurisdiction of which is limited
                 to misdemeanors, [is] as a matter oflaw among those, " ... statutory
                 county court judges trying criminal cases in the county or counties
                 served by the judicial district ... ", as stated in § 76.002, Government
                 Code, and thus one of, "the judges described in § 76.002[.]'"

         You explain that Harrison County (the "county") has one district court judge and one
statutory county court judge. See Request Letter at 1; see also TEx. GOV'TCODEANN. §§ 24. 173(a)
("The 71 st Judicial District is composed of Harrison County."), 25.1041 ("Harrison County has one
statutory county court, the County Court at Law of Harrison County.") (Vernon 2004). You tell us
that the jurisdiction of the county court at law "is limited to that of county courts, meaning, for our
purposes, Class 'B' and 'A' misdemeanors." Request Letter at 1 (citing Texas Government Code
sections 25.0003-.0004).

       The focus of your inquiry is Government Code section 76.002. TEx. GOV'T CODE ANN.
§ 76.002(a) (Vernon Supp. 2008). It provides, in relevant part, that

                [t]he district judge or district judges trying criminal cases in each
                judicial district and the statutory county courtjudges trying criminal
                cases in the county or counties served by the judicial district shall:



        lRequest Letter at 2 (available at http://www.texasattorneygeneral.gov).
The Honorable Joe Black - Page 2                         (GA-0728)



                          (1 ) establish a community supervlSlon and corrections
                   department; and

                            (2) approve the department's budget and community justice
                   plan.

ld. (emphasis added). Specifically, you seek to understand whether the judge of a county court at
law with jurisdiction over only misdemeanor cases, rather than felony or felony and misdemeanor
cases, falls within the group of judges described in Government Code section 76.002(a). See
Request Letter at 1-2.

        Your question requires us to construe section 76.002(a). When construing a statute, the
objective is to determine and give effect to the Legislature's intent, which is determined first by
examining the language of the statute. See Leland v. Brandal, 257 S.W.3d 204,206 (Tex. 2008).
A court will apply the "definitions prescribed by the Legislature and any technical or particular
meaning the words have acquired." City ofRockwall v. Hughes, 246 S.W.3d 621,625 (Tex. 2008)
(citing Government Code section 311.011(b)). Otherwise, the statutory words will be construed
according to their plain and common meaning, unless a contrary intent is apparent from the context
in which the words are used or it leads to absurd results. See id. at 625-26. A court may also
consider legislative history in construing a statute. See id at 626 n.6 (citing Government Code
section 311.023(3)).

        In order for a county court at law judge to be included in the group of judges described in
section 76.002(a), the judge must (1) preside over a "statutory county court" and (2) "try[] criminal
cases in the county or counties served by the judicial district." TEx. GOV'T CODE ANN. § 76.002(a)
(Vernon Supp. 2008). A "statutory county court" is defined, for purposes of section 76.002, as "a
county court created by the legislature under Article V, Section 1, of the Texas Constitution." TEx.
GOV'T CODE ANN. § 21.009(2) (Vernon 2004) (defining terms in title 2 of the Government Code);
Tex. Att'y Gen. Op. No. JC-0452 (2002) at 2.

        Chapter 76 does not define the phrase ''trying criminal cases" and we find no other relevant
statutory or common-law definition. This office, in a 2005 attorney general opinion, examined the
meaning of the phrase "district judges trying criminal cases" under section 76.002(a). See generally
Tex. Att'y Gen. Op. No. GA-0357 (2005). Considering the phrase in the context of chapter 76,2 that
opinion concluded that "'trying criminal cases' must refer to criminal cases that involve the
programs created in chapter 76 such that a judge would have an interest in" the department
established under section 76.002. ld. at 4. As evidenced by your Request Letter, a statutory county
court judge with only misdemeanor jurisdiction may make decisions that involve chapter 76


         2The opinion addresses the difference between the phrase ''trying criminal cases" as used in section 76.002(a)
and a court "exercising criminal jurisdiction," as used in other sections of chapter 76, such as section 76.003(b)(6). See
Tex. Att'y Gen. Op. No. GA-0357 (2005) at 4,6 (explaining "the legislature intended some meaning for 'trying criminal
cases' that is more narrow than criminal jurisdiction" and concluding that a judge trying criminal cases is one that, in
examining a criminal issue, makes a decision that would involve a chapter 76 program or facility).
The Honorable Joe Black - Page 3                (GA-0728)



programs. See Request Letter at 4 (explaining that, in 2008, the County Court at Law of Harrison
County "ordered 266 defendants be placed under the supervision of the Harrison County"
Community Supervision and Corrections Department and used various programs ofthe Department);
see also, e.g., TEX. GOV'T CODE ANN. § 51.702(b) (Vernon Supp. 2008) (authorizing statutory
county courts to charge court costs in cases including those "in which probation or deferred
adjudication is granted"). In examining the phrase "criminal case" further, we observe that a
misdemeanor is, by definition, a criminal offense and the ordinary meaning of the terms "criminal"
and "case" are broad and encompass misdemeanors. See TEx. PENAL CODE ANN. § 1.07(31) (Vernon
Supp. 2008) ("'Misdemeanor' means an offense so designated by law or punishable by fine, by
confinement in jail, or by both fine and confinement in jail. "); BLACK' S LAW DICTIONARY 402 (8th
ed. 2004) (defining the term "criminal," when used as an adjective, as "[h]aving the character of a
crime; in the nature of a crime [or] [c]onnected with the administration of penal justice <the criminal
courts>"); id at 228 (defining the term "case," to mean "[a] civil or criminal proceeding, action, suit,
or controversy at law or in equity"). Thus, the phrase "statutory county court judges trying criminal
cases" in section 76.002(a) is sufficiently broad to include those judges with criminal jurisdiction
limited to misdemeanors.

        In addition, nothing in the text of section 76.002(a) excludes a statutory county court judge
who is trying criminal cases but who has criminal jurisdiction over only misdemeanor cases. See
HEB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd, 235 S.W.3d 627, 658 (Tex. 2007)
(explaining that when construing a statute, a court "cannot create exceptions where none appears to
exist"); Pub. Uti!. Comm'n v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988) ("A court may not write
special exceptions into a statute so as to make it inapplicable under certain circumstances not
mentioned in the statute."). Finally, we find nothing in the context of chapter 76 or the legislative
history of section 76. 002(a) indicating that the Legislature intended to exclude statutory county court
judges that try only misdemeanor cases from the group of judges set out in section 76.002(a). See,
e.g., HOUSE RESEARCH ORG., BILL ANALYSIS, Tex. H.B. 1326, 79th Leg., R.S. (2005) at 2
("Statutory county court judges would [under CSHB 1326] share [community supervision and
correction department] duties with district court judges."). In sum, we think it likely that a court
would construe section 76.002(a) to include a statutory county court judge with only misdemeanor
jurisdiction who is trying criminal cases in the county or counties served by the judicial district.
The Honorable Joe Black - Page 4             (GA-0728)



                                      SUMMARY

                      The judge of a statutory county court who is trying criminal
              cases in the county or counties served by the judicial district and who
              has jurisdiction over only misdemeanor cases is likely among the
              group of judges described in Government Code section 76.002(a).




ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Christy Drake-Adams
Assistant Attorney General, Opinion Committee
