I




              TIE     A’ITORNEY            GENERAL
                           OF    TEXAS
                       AUSTIX.   ‘lkXAS    78711




    The Honorable Tim Curry                Opinion No. H-1026
    District Attorney
    Tarrant County                         Re: Venue of criminal
    Fort Worth, Texas 76102                proceedings in the jus-
                                           tice court.

    Dear Mr. Curry:

         You have requested our opinion concerning the venue of
    criminal proceedings in justice courts in counties of over
    225,000. In essence, your questions are:

         1)   Does article 4.12 or article 45.22 of the
              Code of Criminal Procedure control the
              venue in such cases, and is the applicable
              article mandatory or directory?

         2)   Is it procedurally correct for a police
              officer to file a speeding case under
              State law in the precinct in which the
              alleged offense occurs?

         3)   Must a magistrate transfer a case to a
              proper court when he is apprised that his
              court does not have venue or when a plea
              of privilege (oral or written) is filed
              and the basis thereof proven?

         4)   What penalties could be imposed upon a
              magistrate who tries a case or cases des-
              pite proof that his court does not have
              venue; specifically, may such action form
              the basis for a removal action?

         Article 4.12, Code of Criminal Procedure, establishes
    justice court venue generally. Article 45.22,  Code of Crim-
    inal Procedure, provides:




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The Honorable Tim Curry - Page 2    (H-1026)



          Sec. 1. No person shall ever be tried in
          any justice precinct court unless the of-
          fense with which he was charged was com-
          mitted in such precinct.  Provided, however,
          should there be no duly qualified justice
          precinct court in the precinct where such
          offense was committed, then the defendant
          shall be tried in the justice precinct
          next adjacent which may have a duly qual-
          ified justice court. And provided fur-
          ther, that if the justice of the peace of
          the precinct in which the offense was com-
          mitted is disqualified for any reason for
          trying the case, then such defendant may
          be tried in some other justice precinct
          within the county.

          Sec. 2. No constable shall be allowed
          a fee in any misdemeanor case arising in
          any precinct other than the one for which
          he has been elected or appointed, except
          through an order duly entered upon the
          minutes of the county commissioners court.

          Sec. 3. Any justice of the peace, con-
          stable or deputy constable violating this
          Act shall be punished by a fine of not less
          than $100 nor more than $500.

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

     Article 45.22 is controlling in counties of over 225,000,
as specific venue statutes control over general provisions.
Trees v. State, 152 S.W.Zd 361 (Tex. Crim. App. 1941). Fur-
thermore, the penalty provision of article 45.22 clearly in-
dicates that its requirements are mandatory rather than di-
rectory. Both article 4.12 and article 45.22 were said to
be unconstitutional in Attorney General Opinion C-602 (1966).
See also Attorney General Opinions V-496 (1948) and O-6940
--
(1945). In Bradley v. Swearingen, 525 S.W.Zd 280, 282 (Tex.
Civ. App. -- Eastland 1975, no writ), however, the court in-
dicated that article 4.12 was valid and that it believed
Attorney General Opinion C-602 was erroneously decided.   In
light of that determination, we overrule Attorney General
Opinions C-602 (1966): V-496 (1948); and O-6940 (1945).




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    The Honorable Tim Curry - Page 3   (H-1026)



         Section 143 of article 6701d, V.T.C.S., provides that a
    violation of speed laws on state highways constitutes a mis-
    demeanor punishable by a fine of one dollar to two hundred
    dollars. Accordingly, in counties of 225,000 or more,  article
    45.22 generally requires a police officer to file a speeding
    case under State law in the precinct in which the alleged of-
    fense occurs.

         Your third question concerns the appropriate action on
    the part of a magistrate who is apprised that his court does
    not have venue. We have discovered no authority for the
    transfer of proceedings in such circumstances.   See Sims v.
    State, 121 S.W.Zd 350 (Tex. Crim. App. 1938); Ta-r    v. State,
    197 S.W. 196 (Tex. Crim. App. 1917). Accordingly, in such an
    instance a magistrate should dismiss the action, and it should
    be refiled in the proper precinct.  Trees v. State
    Romay v. State, 442 S.W.Zd 399 (Tex. Crim. App. 19i9FEAF
    v. State, 385 S.W.Zd 260 (Tex. Crim. App. 1964).

         Your final question involves the possible sanctions for
    a magistrate's refusal to observe the provisions of article
    45.22. That article provides for a fine in such an instance.
    Furthermore, a corrupt and willful violation of article 45.22
    could constitute official misconduct and subject an offending
    magistrate to removal. V.T.C.S. arts. 5970 - 5997; see
    Brackenridge v. State, 11 S.W. 630 (Tex. Civ. App. 1889, no
    writ).

                            SUMMARY

              Article 45.22, Code of Criminal Procedure,
              controls the venue of actions in justice
              precinct courts in counties of over 225,000.
              Its provisions are mandatory, and thus, an
              officer should file a speeding case under
              State law in the precinct in which the al-
              leged offense occurs.   A case filed in the
              wrong precinct should be dismissed. A magis-
              trate who refuses to observe the provisions
              of article 45.22 is subject to fine under
              that article, and a corrupt and willful vio-
              lation of article 45.22 could constitute of-
              ficial misconduct and subject the magistrate
              to removal. Attorney General Opinions C-602
               (1966); V-496 (19481; and O-6940 (1945) are
              overruled.




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The Honorable Tim Curry - Page 4   (H-1026)




                              Attorney General of Texas

APPROVED:




C. ROBERT HEATH, Chairman
Opinion Committee

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