                HE                         Y GE                AL
                             OFTEXA~




The Honorable Melvin D. Whitaker                    Opinion   No. H- 135
District Attorney
606 Crawford Street                                 Re:   Authority of a district
Palestine,  Texas 75801                                   attorney in a criminal
                                                          case transferred    to his
                                                          district after indictment
Dear Mr.     Whitaker:                                    in another district

       You have asked whether you, as district attorney for the 173rd
Judicial District,    may try a criminal case which, after indictment,      has
been transferred     to that court from the Third Judicial District Court.
The Third and 173rd Judicial Districts     have identical boundaries,    but
the 173rd District Court has never empaneled a grand jury.         Therefore,
all indictments    in Anderson,   Henderson and Houston counties have been
returned to the Third District Court.

         The transfer of a case from one court      to another is clearly    autho-
rized   in Article 199a, V. T. C. S., $ 2.002(a),    which provides:

                      “In any county in which there are two or more
              district courts,   the judges of such courts may, in
              their discretion,   either in term-time    or in vacation,
              on motion of any party or on agreement       of the parties,
              or on their own motion, transfer any case or proceeding,
              civil or criminal,    on their dockets to the docket of one
              of the other said district courts; and the judges of the
              courts may, in their discretion,      exchange benches~or
              districts   from time to time. ”

The transfer procedures    have been repeatedly  upheld. Garcia v. State, 429
S. W. 2d 468 (Tex. Grim. 1968); Ehrlich V. State, 281 S. W. 548 (Tex. Crim.
1926); Littleton V. State, 239 S. W. 202 (Tex. Grim. 1922); Cummings V. State,
35 S. W. 979 (Tex.Crim.1896);   Moore v. State, 35 S. W. 668 (Tex. Crim.1896).




                                       p. 648
The Honorable      Melvin    D. Wbitaker,      page 2      (H-135)




       When the case is transferred,     it is a case in the transferee court,
and it is the duty of the district attorney of the district which received
the case to represent   the State.  Artic:le 2.01, Vernon’s    Texas Code of
Criminal Prodecure;     and see Acts 1973, 63rd Leg.,      ch. 442, p- 1228,
creating the office of District A,ttorney of the 173rd Judicial District.

         We know of no constitutiona:l      limitation    which would require   a dif-
ferent   result.

                                        SUMMARY

                       It is the    duty of the District Attorney for the
               173rd Judicial       District to prosecute  a criminal case
               transferred     to   that court from the Third Judicial
               District Court       in which the indictment was returned.

                                               Very truly yours,




                                               Attorney    General   of Texas
         n




DAVID M. KENDALL,             Chairman
Opinion Committee




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