       .   .




                                The Attorney General of Texas
JIM MAlTOX                                             August      13, 1984
Attorney General



Sucmme Cowl Bulldlno           Eonorable Hike.Drim:oll                            Opiniw   No.   m-190
P. 0. Box 12545      -         Eerrie County Atto::uey
AUS!h TX. 75711. ?%a           1001 Preston,  Suit! 634                           Re: Venue of criminal   proceedings
5121475-2501                   Houston, Texas     7’1002                          in Justice Courts
Telex SWS74~1367
Telecopier 51214750266
                               Dear Mr. Driscoll:

714 Jwkson. Suits 700                You have asked the folloving   questions               relating to the venue of
Dallar. TX. 752024506
                               certain  criminal prxeedings   in the justice               courts in Earris County:
21417428844

                                                 1. Dues article    4.12 or article        45.22 of the
4S24 Albsfi. Ave.. suite 180                 Code of *:riminal    Procedure    control     the venue of
El P880, TX. 7SSG52793                       criminal  charges filed    pursuant     to section    32.41
s1m34s4                                      of the I’mal Code ‘ia the justice        courts of Harris
                                             County,  tmd is    the applicable      article,    if any.
ml fexss. sulle 700                          mandatory or directory?
HPUS~D~.TX. 77002.3111
713mMSe6                                         2.    Is it      proper for a:justice   of the peace     in
                                             Eartie   Ccunty       to do any of the following:
W5 Broadwsy. Suile 312                 ,       ~.‘!-il)“‘A.ccept   a-bad check charge/complaint    fdi an
Lubbock. TX. 7S401.347’2
aow-747~5239                               :, -offense      wh%chth:occurred within ‘Barris   County but
                                               not withim      his precinct?   ’
43C4 N. Tenth. Suit0 B
MeAllen. TX. 7SYmlSa5
                                ‘.:.       ‘.~-    (2) :&wept      a’bad recheck charge/complaint for ‘an
                                       r      ,offense~%hich       occnrred ‘with%% his precinct     when
5wS524547         ,-
                                               defendautresides        in, Barris  County but not within
                                               his prec:!.nctP      ’
 200 Mm Plu*. suite 400
 Ssn Anmnlo. TX. 782052797
                                              (3) rLccept a bad check charge/complaint            for an
 512l225-4181
                                         offense    which occurred      within    his    precinct    but
                                         .defandarr: resides    in another county?
 An Equal OpporWW/                             .t
 *fflrm*tlvo ActIon Employ*r   Your request    for an opinion      is accompanied       by a brief      which     also
                               dfacuases  the eonatitutionality      of .artlcles   4.12 and 45.22.

                                       Article  45622 of. the Code of Criminal       Procedure determines   the
                               venue of criminal     charge8 filed    in the justice   courts of Darris County
                               for ~the offense     of issuing    a bad check under sectlon      32.41 of the
                               Penal Code, and its provisions       are mandatory.     Except as provided if a
                               justice     of the pcwce ie disqualified.     it is not proper for a justice




                                                                           D.   830
Honorable ,Mike Drincoll         - :?age 2      (JH-190)




of the peace in Harris Cowty to accept such a bad check case when the
offense    does not occur rdthin    his  precinct,   but it  is   proper,
regardless    of the residema, of the defendaut.   vhm the offense   does
occur within his preclact.

        Section     32.41   of the    Penal     Code lists     the    elements    that
constitute      the offowe of issuance        of a bad check and provides         that
such an offense        is a Class C Msdewanor.         A Class C Misdemeanor is
punishable       only by a fins      not    to exceed     $200, vhich      punishment
conforms      to the constitutional       and ltatutory      jurisdiction      of  the
justice     court    in this   stwe.    Article    0, rection     19, of the Texan
Constitution      provides   in ptrt that

             Justices  of the :Peace shall    have jurisdiction in
             criminal  matters   >f all cases where the penalty or
             fine to be woei       by law may not be more than for
             two hundred dollarr    . . . .

Article  4.11 of the Code of Criminal Procedure specifies     that justices
of the peace have jurisdiction    in criminal   cases where the fine to be
imposed by law may not exceed $200.           Accordingly, the offense      of
issuance   of a bad check under eection 32.41 is vithin         the subject
matter jurisdiction  of the justice   courts.

        Venue does        not    lisdt      or affect        the   jurisdiction       that     is
prescribed      by the constitwion            and by statute       for the justice       court.
“Venue ,” as applied           to ,criminal         cases.    means the place        in which
prosecutions       are to begin, uhile “jurisdiction”               means the power of the
 court to hear and determiuo              the case.        The terms are not syoonymotiS~
 See Martin v. State, 385 8.U.2d 260 (Tax. Grim. App. 1964); Bradley v.
saringen.         525 S.W.Zd 28Cm(Tex. Civ. App. - Eastland                   1975. no writ);
Attorney      General Opinion D-1026 (1977).                The Texas Constitution         gives
 the legielaturc        pouer~to       fir.venue       and the courts       pouer to change
venue in the manner providedby                  law.    Article   III, section     45. of the
 constitution      atates    that ,~:he “power to change the venue in civil                   and
 criminal     cases shall be vwted            in the courts,      to be exercised       in such
manner as shall         be proviclcd by law; and the Legislature                   shall    pass
 laws for that puipose.”

       We believe      that   articles    4.12    and 45.22        are merely       venue
requirements     for criminal    cases within    the jurisdiction        of the justice
courts , including       the off,mse    of immuing bad checks under section
32.41 of the Penal Code. Article          4.12 establishes       justice     court venue
for misdemeanor       cases   ucrpt    to the extent        that,     in each of the
several   counties     in the state     which have a population            of at least
225,000.    article     45.22 fires    venue in the justice             courts.     Hence
article   45.22,     rather   ttun article      4.12.   is applicable           in Earris
County.    See Bradley v. lpearingen,          B;       Attorney       General opinion
E-1026.    Article    45.22 prcvides    as follows:




                                             0. 831
Ilonorable   Mike Driscoll       - Page 3        (Jn-190)




                  Sec. 1. No p’crson shall              ever be tried in any
             justice      precinct        court    unless    the    offense      with
             which      he was        ‘::larged     was colPlnitted        in     such
             prscinct . Provided,             however,     should there be no
             duly     qualified        justice      precinct       court     in    the
             precinct      where llulcb offense           was emitted,            then
             the     defendant       ohall      be tried       in    the justice
             precinct      next      adjacent       which ry        have a duly
             qualified       justice       court.      And provided        further,
             that if the justice             of the peace of the precinct
             in which the offense vaa~comitted                   is disqualified
             for    any reason         for    trying     the case,       then such
             defendant        may t,r, tried         in some other           justice
             precinct     within      r:he county.

                 Sec. 2. No constable    shall be alloved  a fee in
             any misdemeanor t:rise arjsing in any precinct    other
             than the one for which he has been elected             or
             appointed,  exccrt   through an order duly entered
             upon the mlnut’es     of the     county  commissioners
             court.

                 Sec. 3. Any justice    of the peace. constable or
             deputy   constsblc  violating    this   Act shall  be
             punished by a floe of not less than $100 nor more
             than $500.

                 Sec. 4. The provisions    of this Article    shall
             apply only    to counties  having   a population     of
             225,000 or over’according     to the last   preceding
             federal  census.

      The language of article      45.22 indicates   that its venue’provisions
are mdatory     rather than l@zalssive , and requires        that a suit on the
issuance   of a bad check bll filed     in the urecinct   in which the offense
vas colpitted.     See Allietl Artists    Pictuies  Corp. v. Transcontinental
Theatres,   Texas.-&.-      57.1 S.U.2d 871, 872 (Tu.     Civ. App. - Sastland
1978, writ diam’d);    Attorcay    General Opinion E-1026.

      A change of venue us~lly           means changing the place of trial    from
one county to another.          Chapter 31 of the Code ~of Criminal     Procedure
provides    for the change          of venue to another    county  to secure     an
impartial    trial    on motion of the court or on motion of the defendant
in   either     a    felony    caee    or a misdemeanor     case  punishable     by
confinement.       See V.T.C.S, arta. 31.01; 31.03(a).        The Texas statutes
do not provide%r          change of venue in cases within the jurisdiction       of
the justice        courts.    nalu!ly,    cases  which  are not   punishable     by
confinement.       However, the United States Supreme Court has held that
an individual      has en inhe::unt right to a chsnge of venue if he demands




                                              D. 832
Honorable    Hike    Drlscoll   - ?‘lgc 4        (JM-190)




e jury   trial cod if      it spp~ars that an impartial     jury and a fair trial
csnnot   be obtained       In the county.     See Irvin v. Dowd. 81 S.Ct. 1639
(1961).      At a time     when the! Texas statute8   providing     for a change of
venue were limited           to felony   caees vith    one exception.     a federal
district      court held      that, under the due process      clause   of the 14th
Amendment, It was the dut:r of the Texas judiciary            to provide    a fair
trial     by an impartial     jur:f to a person charged with a misdemeanor
punlsbable      by confinement , even if to do so the court must grant a
change of venue         that   wntravenes   state   statutes.     See Hisson V.
;a$~,        232 P.Supp. 539 0.D.     Tex. 1964). aff’d.   364 F.2dl     (5th Clr.
        .

       We believe      that.   if presented   with the issue.       the courts would
find     that    every     person   accused    of  a criminal         offense      has     a
constitutional      right to a t.rlal by an impartial        jury regardless       of the
punishment which may be ac:N,rded or the serious             or petty nature of the
offense.       See also Tex. Coast. art.       I, (10.     It i# our opinloa         that,
in the counties       where it d.s applicable,     article    b5.22    fixes mandatory
venue for trial       in the jmtice      court in the precinct       in which a Class
C Misdemeanor is comitted.             We believe    tbat the courts         vould     find
that a defendant who demands a jury trial              has a constitutional          right
to an impartial        jury and 1:~ a change of venue if it is necessary                 for
that purpose.

      In answer to the first         part of your second question,             it is not
proper for a justice        of the peace in Harris County to accept a bad
check case when the offense          did not occur within           his precinct.      Tbe
mandatory provisions       of article     45.22,    require     that the complaint      be
filed    in the precinct     where the offense          occurred unless,      of coarse,
the justice    of the peace j.r. that precinct           is disqualified.       We answer
the last two parts of your second question                in the affirmative.        It is
proper     for   8 justice       <If the        peace     to    accept    a bad      check
charge/complaint      in both       of those        situations.        Tbe defendant’s
residence    ie not significrpt     where article        45.22   determines   venue.     In
each of the last         two situations,          the offense       occurs  vfthin     the
precinct    of the justice     o:F the peace in question           and venue is proper
in that precinct.

       Tbe   answers    to the Ilpecific      questions   which you asked about
articles     4.12   end 45.22      io not appropriately       include enswers to
unrelated    questions     and therefore , we express no opinion on AUK other
potential    constitutlonel     ismes   discussed    in your brief.

                                      SUHMARY

                    Article   45.22 3f the Code of Criminal Procedure
                 is  applicable      jn Harris   County    and provides
                 mandatory venue requirements      for charges filed   in
                 the justice    cow(:a for issuing    a bad check under




                                            p.   833
Hoaornble   Mike Driscoll     - Piige 5   (M-190)




            section     32.41    of    the Penal     Code.   Except     *a
            provided        if  n     justice    of     the  peace      is
            disqualified,       vwue       for misdemeanors     in    the
            justice    courts it. Rarris County is limited        to the
            precinct      lo wbic’n the offense      occurs, regardless
            of the residence       of the defendsnt.




                                              vJ     I n      MATTOX
                                                   Attorney    General of Texas

TOMGREEN
First Assistant    Attorney    General

DAVID R. RICHARDS
Executive Assistant     Attorn?:?   General

Prepared    by Nnncy Sutton
Assistant    Attorney General

APPROVED:
OPINIONCOI4WlTEE

Rick Gilpin.   Chairman
David Brooks
Colin C*rl
Susan Gnrrison
Jim Moellinger
Nancy Sutton
