The Attorney General of Texas 

F~hruary 21, 1986 

JIM MAlTOX 

Attorney General 

Supreme Court BulldlnO 

P. 0. Box 12548 

Aus?,“, TX. 78711.2548 

51214752501 

Telex SlOI874~13B7 

Telecopier 5121475-0286 

714 JacksOn. BUM 700 

Dallas, TX. 752024508 

214i742.8944 

4B24 Alberta Ave., Suite 160 

El Paso. TX. 799052793 

91Y533-3484 

1001 Texas. Suite 700 

Houston. TX. 77002.3111 

71312235886 

606 Broadway, Suite 312 

Lubbock. TX. 79401.%79 

8oBl747.523B 

4303 N. Tenth, Suite B 

McAllen. TX. 78501-1585 

512lW2-4547 

200 Main Plaza, suite 400 

San Antonio, TX. 782062797 

512!225-4191 

An Equal OPportUnitYl 

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 

Dear Mr. Hauna: 

YOU ask 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 and the prosecutor. We note, however, that 

jurisdiction over misdemeanor cases is divfded between the district 

courts and the county courts according to the nature of the offense. 

See Code Grim. Pcoc. arts. 4.05, 4.07. In Johnson County, the county 

zrt and the 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 3 of 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. 1990 
Honorable 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 and the court which properly has jurisdiction 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. The court may set any criminal case 

for a pre-trial%aring before it is set for trial 

upon its merits,-$d direct the defendant and his 

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 rrmat be 

present at the arraignment, and his presence is 

required during any pre-trial proceeding. The 

pre-trial hearinS shall be to determine any of the 

following matters: 

(1) Arraignwnt of the defendant, if such be 

necessary; and appointment of counsel to represent 

the defendant, i:i such be 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 known at the time 

may be presented ,and considered at any time before 

the defendant announces ready for trial; 

(6) Motions to suppress evidence -- When a 

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

pre-trial hearing, may be renewed by the State or 

the defendant during the voir dire examination of 

the jury; 

(8) Discovery; 

(9) Entrapment; and 

(10) Hotlon for appointment of interpreter. 

Sec. 2. When a 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 for good 

cause shown; Er:3”ided that the defendant shall 

have sufficient notice of such hearing to allow 

him not less thh 10 days in which to raise or 

file such prelim:&ry matters. The record made at 

such pre-trial t;aring. the rulings of the court 

and the exceptions and objections thereto shall 

become a part 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) By announcement made by the court in open 

court In the presence of the defendant or his 

attorney of recocfa; 

(2) By peracnal service upon the defendant or 

his attorney of record; 

(3) By mail to either the defendant or his 

attorney of record deposited by the clerk in the 

mail et least alx days prior to the date set for 

hearing. If the defendant has no attorney of 

record such notice shall be addressed to defendant 

at the address ,shown on his bond, if the bond 

shows such an a.ddress. and if not, it may be 

addressed to cm! of the sureties ou his bond. If 

the envelope wntaining the notice is properly 

addressed, atamlbed and mailed, the state will not 

be required to chow that it was received. 

(Emphasis added: . 

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

See generallg Barbee v. Stafc, 432 S.P.2d 78 (Tax. Grim. App. 1968), 

cert. denied, 395 U.S. 924 ;1,969). 

Section 1 of 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 made by 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 , a term which includes county and 

district court judges. Set Code Grim. Proc. ert. 2.09. These ducira 

include the issuance of xi 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 of court clerks as 

follows: 

Each clerk of the district or county court 

shall receive an3 file all papers and exhibits 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 of pre-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 to notify 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 

and trial settings. See Xncan 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 to direct persona to serve 

process depends primarily on the statutes vhicb djrect the method of 

service. Article 2.13 of the Code of Criminal Prccrdure provides that 

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

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

lawful process issued to Mm by any magistrate or court." See also 

Code Grim. Pro. art. 2.1(,. A prosecuting attorney is not incltided 

within this definition ot "peace officer." The official duty to 

execute service of process issued by a magistrate falls upon sheriffs. 

See Code Grim. Proc. arte,. 2.12, 2.13; Eeary S. Wlller Company v. 

-c. 452 S.W.2d 426 (Twt. 1970); Grass v. Grass. 608 S.W.2d 356 

(Tax. Clv. App. - Dallas 1380, no writ); 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#D prosecuting 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 and trial settings. 

Tour final questiorl is vhether a prosecutor is ethically 

prohibited from notifying misdemeanor defendants of pre-trial hearings 

and trial 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 

a client a 1awyc.r shall not: 

(1) Conam.nicate or cause another to communicate on the subject of the representation with'?. party he knows to be represented 

by 1awyc:r in that matter unless he has 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, 6011 S.W.Zd 313 (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 from notifying misdemeanor defendants 

of pre-trial hearings and trial settings. 

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

SUUMARP 

Article 28.01 of the Texas Code of Criminal 

Procedure provide:, that the court has 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 not ethically prohibited 

from notifying de:Eendants of pre-trial hearings 

and trial setting:,., 

Very truly your J AA b 

JIM MATTOX 

Attorney General of Texas 

JACK HIGRTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorneg General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIK 

Chairman, Opinim Committee 

Prepared by Jennifer Riggs 

Assistant Attorney General 

p. 1995