# TheAttorney General ofTexas F~hruary 21, 1986 **JIM MAlTOX**  **Attorney General** 

Supreme Court BulldlnO P.0. Box12548 Aus?,“,TX. 78711.2548 51214752501 Telex SlOI874~13B7 Telecopier 5121475-0286

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AnEqualOPportUnitYl A,,,rmati”e Action Employer Eonorable Dale Hanma Johnson County **Attwmey** 1st Floor, Courthouse Cleburne,Texas 76031 Opinion No. JM-435
Re: Responsibility for notlficatlon of defendants In criminal cases DearMr. Hauna: YOUask the fallowing questions about notification of misdemeanor defendants of cerl.ain criminal proceedings:

1. Vhoae responsibility is it to notify defendauta and/or defense attorneys of criminal miademerluor arraignment. pre-trial, and trial setting:, in the district court, i.e., court secretary, prosecutor, district courzerk, or sheriff ’s office?
2. ‘3oea the district court have jurisdiction to order the prosecutors office to notify criminal defendants of arraignment, pre-trial, and trial settings?
3. Is a prosecutor ethically prohibited **by** disciplinary rule DR-7-104 from notifying defendants of such arraignmtnt, pre-trial. or trial settings after they have employed counsel? Tour request letter poses the question primarily as a choice benreen the diatl:j.ct court andthe prosecutor. Wenote, however, that jurisdiction over misdemeanor cases is divfded between the district courts and the county courts according to the nature of the offense. See CodeGrim. Pcoc. arts. 4.05, 4.07. In Johnson County, the county zrt andthe dil,trict court have concurrent jurisdiction over certain misdemeanor cases. See V.T.C.S. art. 1970-335. $2. See generally, Regian v. Sowell~, 53S.W.2d 175, (Tex. Civ. App. - Waco 1976, writ ref ’d n.r.e.). %rctlon 3of article 1970-355 provides that

[t]he District Clerk of Johnson County shall continu’c to perform all the clerical functions of and for the County Court of Johnson County, Insofar as all matters and csuses over which the

p. 1990Honorable Dale Hanna- Page:! (JM-435)

said District Court and county **Court have**  concurrent jurisdiction, as hereinabove set out. Consequently, we address your question solely as one between the prosecutor’s office andthe court which properly hasjurisdiction 

### over the misdemeanor case in question. Article 28.01 of the Texas Code of Criminal Procedure provides for pre-trial hearings as follows:

Section 1. Thecourt mayset anycriminal case for apre-trial%aring before it is set for trial upon its merits,-$d direct the defendant andhis attorney, if arp of record, and the State’s attorney, to appesr before the court at the time and place **statea** in the court’s order for a conference and ‘Graring. The defendant rrmatbe present at the arraignment, and his presence is required during any pre-trial proceeding. The pre-trial hearinS shall be to determine anyof the following matters: (1) Arraignwnt of the defendant, if such be necessary; andappointment of counsel to represent the defendant, i:i suchbe necessary; (2) Pleadings of the defendant; (3) Special pleas, if any; (4) Excepti’>us to the form or substance of the indictment or information; (5) Motions for continuance either by the State or defenclant; provided that grounds for continuance not existing or not knownat the time maybe presented ,andconsidered at any timebefore the defendant announces ready for trial;
(6) Motions to suppress evidence -- Whena hearing on **the** motion to suppress evidence is granted, the ccurt may determine the merits of said motion on the **motions** themselves, or upon opposing affidtwits, or upon oral testimony, subject to the discretion of the court; (7) Hotionc for change of venue by the State or the defendslt; provided. however, that such motions for change of venue, if overruled at the

p. 1991Ronorable Dale Banns- Page 3 (a-435)

pre-trial hearing, maybe renewed by 

### theState or the defendant during the voir dire examination of 

### thejury; (8) Discovery; (9) Entrapment; and (10) Hotlon for appointment of interpreter. Sec. 

### 2. Whena criminal case is set for such pre-trial hearing, any such preliminary mattars not raised or filled seven days before the hearing will not thereaj’ter be allowed 

### to be raised or filed, except by permission of the court 

### forgood cause shown; Er:3”ided that the defendant shall have sufficient notice of such hearing to allow him

### notless thh 10 days in which to raise or file suchprelim:&ry matters. Therecord madeat such pre-trial t;aring. the rulings of the court and the exceptions and objections thereto shall become apart of the trial record of the case upon its merits.


### Sec. 3. The notice mentioned in Section 2 above shall bci.f flcient if given in any one of the following wap: (1) Byannouncement madeby the court in open court In the presence of the defendant or his attorney of recocfa; (2) Byperacnal service upon the defendant or his attorney 

### ofrecord; (3) By mail to either the defendant or his attorney of record deposited by the clerk in the mail et least alx days prior 

### tothe date set for hearing. If the defendant has no attorney of record suchnotice shall be addressed to defendant at the address ,shownon his bond, if the bond shows such an a.ddress. and if not, it may be addressed to cm! of the sureties ouhis bond. If the envelope wntaining the notice is properly addressed, atamlbedandmailed, the state will not be required to chowthat it wasreceived. (Emphasisadded:

.

p. 1992Elonorable Dale panna- Page 4 (311-435)

See generallg Barbee v. Stafc, 432 S.P.2d 78 (Tax. Grim. App. 1968), cert. denied, 395U.S. 924 ;1,969). Section 1of article 2!),01 states that **the** court shall direct **the** defendant, his attornay, and the state’s attorney to appear **at** pretriel hearings. Article Zl8.01 also authorizes three methods of notification: personal aervicil) “[b]y announcement madeby the court,” (2) “[bly

” or (3) [‘bjy mail

. . . deposited by the clerk.” We conclude that &is langua8e places the responsibility for notifying defendants of pre-trial hearings upon the court rather than upon the prosecuting attorney. Other provisions in tlw Code of Criminal Procedure support this conclusion and suggest that the court must also notify defendants of trial settings. Chapter 2 of **the** code, articles 2.01 through 2.24, sets forth the duties of magistrates , atermwhich includes county and district court judges. Set Code Grim. Proc. ert. 2.09. These ducira include **the** issuance ofxi process Intended to aid In prevent1r.g **end** suppressing crime. Id. a:%. 2.10. Article 2.21(a) of the Code of Criminal Procedure provides3 for **the** general duties 

### ofcourt clerks as follows: Each clerk of **the district**  **or** county **court**

shall receive **an3** file all papers andexhibits in respect to criminel proceedings, issue all process in such csses, and perform all other duties imposed upon **then** by law.
In contrast, **the** provisions of the code vhf& set forth the dutlex of prosecutors, see arts. 2.01-2.08, neither require nor suthorize district attorneys, count]’ attorneys. or criminal district attorneys to issue or execute process. Consequently. the court, rather then the prosecutor. has the reapo~~rribility to notify defendants 

### ofpre-trial hearings and trial settings. See Attorney General. Cpinion O-5694 - (1943). Your second question requires consideretlon of whether the court holds the **power to**  fulfil:l fta responsibility 

### tonotify defendants by ordering **the** prosecutor’s, office to carry out these duties of the **court, a.**  by ordering the prosecutor’s offlce to execute process issued by the court. AE indicated. the code imposes no duty on prosecuting attorneys to uotlfy defendants of pre-trial proceediner andtrial settings. SeeXncan V. State, 67 S.W. 903, 905 (Tex. Civ. App. 1902, **no** writ); cf.‘?aulder v. Dill, 612 S.b.2d 512 ITex. Grim. App. 1980). --
t!oreover , the authority of **the** court 

### todirect persona to serve process depends primarily **on** the statutes vhicb djrect the method of service. Article 2.13 of the Codeof Criminal Prccrdure provides that

p. 1993Honorable Dale Banns - Pago 5 (m-435)

every peace officer. as de,Eined in article 2.12. "shall execute all lawful process issued 

### toMmby anymagistrate or court." See also Code Grim. Pro. art. 2.1(,. Aprosecuting attorney is **not** incltided within this definition ot "peace officer." The official duty to execute service of process issued by amagistrate falls upon sheriffs. See Code Grim. Proc. arte,. 2.12, 2.13; Eeary S. Wlller Companyv. -c. 452 S.W.2d 426 (Twt. 1970); Grass v. Grass. 608 S.W.2d 356 (Tax. Clv. App. - Dallas 1380, nowrit); **Cook**v. Jones, 521 S.U.2d 335 (Tcx. Civ. App. - Dallas 1975, writ ref-'d 

### n.r.e.);Attorney General Opinion E-595 (1975). Although the court may direct persons other than sheriffs to serve prwess in some circumstances, this authority does not properly extend t#Dprosecuting attorneys. Consequently, we do not believe It is sppropriate for the court to order the prosecutor's office to notify misdemeanor defendants of pre-trial hearings andtrial settings. Tour final questiorl is vhether a prosecutor is ethically prohibited from notifying misdemeanordefendants of pre-trial hearings andtrial settings by DR-"-104(A) of the disciplinary rules governing the State Bar. V.T.C.S. .%rt. 320a-1, Title 14. Appendix **A.** art. 12, 18. Rule DR-7-104 states:

(A) During the course of his representation of aclient a 1awyc.rshall not: (1) Conam.nicate or cause another to com**municate** on the subject of the representation with'?. party heknowstobe represented by 1awyc:rin that matter unless hehas the prior cor,sent of the lawyer representing such other party or is authorized by law to do so. (2) Give advice to e person who is not representc:d by a lawyer, other than the advice to-secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict rZth the interests of his client. (Emphasfs added). Rotifvina a defendant of the need to auuear in court is not a cornmunication Non ..

the subject of the representation" prohibited by DR-7-104(A)(l). See gencEally Pannell v. State, 666 S.W.2d 96 (Tex. Grim. App. 1984); Renrlcliv. State, 694 S.W.2d 341 (Tax. Grim. App. 1985); State v. Lemon, 6011S.W.Zd313 (Tex. Civ. App. - Amarillo 1980, no writ). Such "advice" is more akin to advising a def&ndant to secure counsel. Conseqwntly. we believe that a proescutor is not ethically prohibited by DX-7-104 fromnotifying misdemeanor defendants of pre-trial hearings andtrial settings.

p. 1994Ronorable Dele llama - Page 68 (JM-435)

SUUMARP Article 28.01 of the Texas Code of Criminal Procedure provide:, **that** the 

### courthas the rrsponsibillty to notify defendants of pre-trial hearings. The court also has the responsibility to notify defet,dants of trial settings. **A** prosecutor, however, is 

### notethically prohibited from notifying de:Eendants of pre-trial hearings andtrial setting:,.,
Very truly your 

# J b

AA JIM MATTOX Attorney General of Texas JACKHIGRTOWER First Assistant Attorney General MARY KELLER Executive Assistant Attorneg General
ROBERT

GRAY Special Assistant Attorney General
RICKGILPIK Chairman, Opinim Committee Prepared byJennifer Riggs Assistant Attorney General

p. 1995