A-“A’P\’      ‘Iml%MlaAx.
                                          July 6' 1966



           Honorable Carol S. Vance                      Opinion No. C- 718
           District Attorney
           Harris County                                 Re: City Judge's power as
           Houston, Texas                                  magistrate to accept com-
                                                           plaints, issue warrants :and
           Dear Mr. &cc:                                   hold examining trials.
                In an opinion requeat to thla office you pose the
           following queationa:
                            "1.   Can a,city judge, sitting as a m&a-
                                  trate in a case he c&not try as a
                                  judge, but which occurred within the
                                  city, do the following:
                                  a.   Accept complaintP
                                  b.   Iaaue warrant of arrest on aaid
                                       compl.8lnt4
                                  c.   Hold BxamMng trial there!&
                                  d.   Transfer the case to another magia-
                                       trate within the county for exsminlng
                                       trial to avoid serious inconvenience
                                       and delay to the parties.
                            "2.   Can asid city judge exercise the same
                                  jurisdiction as a magistrate relating to
                                  offenaea.which occurred ln the county
                                  but outside the aLty limits?"
                 All statutory references contained In this opinion
           are to Vernon's Code of Criminal Procedure.
                 Article 2.09 Includes city judges in the definition
           of magistrates. Article 2.10 declares that it shall be
           the duty of all maglatratea 1.0issue all process intended
           to aid In preventing and aulpreaaingcrime, and to cause
           the arrest of all offenders.
                 Article 15.03 ia 2 authorizes a msgir',rateto issue
                                  en any person shall make oath be-
           a wa.rrantof arrest Itit
           fore the magistrate that another has committed some offense
           against the Laws of the State." Article 15.04 defines a
           complaint to be an affidavit made before a magistrate or
                                                -3462-
Ronorable Carol S. Vance, pago 2                  (c-718)


“,i;i;;zt           or county attorney charging the commission of en
                .
      In view of the above articles, WC think it clear
thbt a city judge, in a caao which originated within his
city, may accept a complaint and issue a wrant of axreat
on a&Id complaint even though he would be unable to try
the case on its merits.
               Ye have already seen
                            that a city judge is included
in          the definition   ot   maglatratea
                                  as set out In Article 2.09.
Article 2.U states that.when a magistrate alta for the
     oae of inquiring into a criminal accusation, this la
vt3a a n   lea lnl.ngc o ur t.
                             It is therofore the opinion
of this  office thrt a qltyjudgr sitting as a mrgtatrate
may hold an examining trial even In a case overwhich he
haa no jurisdiction. to try on the merits.
      It is our oplnloa that a cityjutlgerlttlag 88 a
magi&rate fn a cam8 which originated wlthin the city which
he cannot try on its merits may transfer the case to mother
magistratewithin the county for an examwing trial to
avoid lerioua~Inconvenienceand deley to the parties.
Ye do not believe that.the limitationswith regkrd to the
trenafer of cases as set out in Articles 4.16 and 4.12,
apply to msgiatrateawhen aittl,ngas en examining court.
In.&nnln~ v. State,281 S.U.21)’903, (Tex. Crlm. 1955) it
was held that Article 4.16, (then Article 64) did not
apply to a Justice of the Peace In a case where the Justice
had no jurisdictionto try the case on the merits.
      The general rule on preliminary trial transfers as
stated at 22, Cq)aaa Juria Secundum, Criminal Y.&w,Section
239 is aq follows:

                      “Where serious inconveniencesnd delay
                       would ens-, either to the pubUc or to
                       the prisoner, by taking him before the
                       judge or the justice who has issued the
                       warrant, he may be taken before some other
                       justice in the 86me county,and In such
                       a casea new complaint and warrant are
                       not required.’
      It la our opinion, therefore, th a t l ctty judge, under
the circumstancesset out In the first question, may trus-
for the caac to enother magistrate within tha county for
8x-       trial to avoid lerloua Inconvenienceand delay
                                       -3463-
Honorable Carol S. Vance, page 3'       (c-718)


to the parties.
       You next ask whether ornot a city judge can exercise
 the same jurisdictionas a magistrate relating to offenses
 which occurred in the county where he la located but out-
 side the Incorporated,city limits for which he is city
 judge. As previously pointed out, a city judge is a magla-
 trate; therefore the question is really not whether the
 city judge can exercise the same jurladlctlonas a,magia-
 trate but rather whether a city judge acting as a magistrate
 has county wide jurisdictionwith regard to the questions
 you rrlad. We know of no case directly in point but
 do note that in the case of Hart v. Stats 15 w..Cnm.
 App. 202 (1883) at page 226 the Court, while speaking of
:JuatIceaof.the Peace aa magistrates, states as follow.8:
           'With regmd to the &al      trial of causes
             coming with&n hIa jurisdiction,whether
            cl-1 or crlmlaal, the statute evidently
             contemplatesthat the action and juria-
             diction of the juaflcela  court shall be..
           'limitedby awl to hi? precinct, unlea?
            otherwLa~~expreaalyauthorized by the law
             la certadg exceptional cases. But he la
             furthermore a 'nbglatrate',made 80~by
            term8 of the statute equally with judges
            of the Supraae Court, Court of Appeals,
             dlrtrict and county judges (Code CrIm.
            Proc., Art. 42), and 'when a magistrate
           , sits for the purpose of lnquirlng Into a
             criminal accuratlon against any person,
             this Is called an:'e.x.+mInlng~court'.'
             (code CrIm. Proc., -Art.,63). At such time
            he is a lmaglatrateland not a *justice
             of the peice.' and his court is an 'e%-
            amlnlngt and not a Ijuatice'a~court'. A
            warrant OS arrest may be Iaaued.by a judge
            of the SupYeme Court, .Courtof Appeals,
            District or County Court, shall extend to
             every part of the Stste  (Code.Crim.Proc.,
            Art.237; but, when Issued by any other
            ma$Lrtra i e 1% cannot be executed In any
            other County,except In certain instances
            mentioned. (Code Grim. proc., Art. 238 .
             It m&y, however, be issued to md execuled
            anywhere In his co\intyoutside of as well
            as In his own precinct. When sitting as
            -an ~examlningcourt.' tlha law nowhere
             limits the magistrate, if he be a justice
                             -3464-
Honorable Carol S. Vance, page 4           . (C-718)


          to hIa particular precinct; and, not being
          limited In this regard, there Is no reason
          why it was not intended that he should
          hold the court in any portion of the county
          moat convenient for the purposes of the ex-
          amlnatlon as to the conunltmentor discharge
          of the accused (Code Crlm. Proc., Chap. III),
          whether the place of the sitting be In the
          precinct of another justice, competutitand
          qualified to act, or not.*
      Tt la our opinion, therefore, that a city judge sitting
as a maglatrate, may accept a complaint, issue a warrant
of arrest on said complaint, hold examining trials, and/or
transfer the case to another magistrate within the county
for the purposes of an examining trial with regard to any
offense comml~ted within the county in which he Is located.
                        SUYYARY.
                       -------
     A city judge ~lttlng aa a msgiatrate has juriq-
     .dictlonto accept complalata on case8 which he
     cum& try on the merlt8, laaue warrant8 of.arrert'
     thereon* hold tbxaWUg trI@la,aad transfer case8
     to other magistrates in the county for.purposer
     OfholdIng exalnbg trials, la all cases which
     Eatzcurred    within the county in which he 18
            .
                                  Yours very truly,
                                  WAGGO=   CARR
                                  Attorney General    of,Texaa




APPROVEDI
OPIWION COMMITTEE:
w. 0. Shulte, Chairman
Robert Owen
Oilbert Pena'
John Reeves
Phllllp Crawford
APPROVED mR THE ATMRNEY GENERAL:
BY: T. 8. Wright
                         -346th
