The Honorable Emory C. Walton

Criminal DistrictAttorney Eastland County Eastland, Texas 76448 opinionNo. H-815

Re: Jurisdictionof the county and district courts in Eastland County.

Dear Mr. Walton:

You have requestedour opinion on a 'number of questions regarding the jurisdictionof the district and county courts of Eastland County.
In 1951, the Legislature transferreda portion of the criminal jurisdictionof the county court of Eastland County to the district court. Article 1970-141a,V.T.C.S., provides in pertinentpart:

Section 1. The County Court of Eastland County shall retain and continue to have and exercise the general jurisdiction inmatters of eminent domain, general jurisdictionof probate courts, and all other jurisdictionnow or hereafter conferredby the Constitution and laws of this State, except as is hereinafterprovided, and shall retain all jurisdictionand power to issue all writs necessary to the enforcementof its jurisdiction,and to punish contempts;but said County~ Court shallhave no civil jurisdiction and no criminal jurisdictionexcept jurisdictionto receive and enter pleas of guilty inmisdemeanor cases, and except as to final judgments referred to in Section 2 hereof.

p.3440The Honorable Emory C. Walton - page 2 (H-815)

Sec. 2. The District Court having jurisdiction in Eastland County shall have and exercise jurisdictionin all matters and cases of a civil nature and in allmatters of a criminalnature, except as to such jurisdictionthat the County Court has to receive and enter pleas of guilty inmisdemeanor cases as is provided in Section 1 hereof,whether the samebe of original jurisdictionor of appellate jurisdiction,over which, by the general laws of the State of Texas now existing and hereinafter enacted the County Court of said countywould have had jurisdiction and all pending civil and criminal cases be, and the same are, hereby transferred to the District Court having jurisdictionin Eastland County, Texas, and all writs and process heretofore issuedby or out of said County Court in all pending civil or criminal cases be, and the same are, herebymade returnable to the District Court sitting in Eastland County, Texas. However, there shall not be transferredto said District Court jurisdiction over any judgments,either in civil or criminal cases, renderedprior to the time thisAct takes effect and which have become final,but as to such judgments the said County Court shall retain jurisdiction for the enforcement thereofby all appropriateprocess.
YOU first inquire as to the court inwhich misdemeanor cases shouldbe filed in Eastland County.

A misdemeanormay be chargedby indictment,and an indictment may be presented only to a district court. Indictments chargingmisdemeanors returned to the district court over which the court has no jurisdictionare to be transferred to the inferior court having jurisdictionof the offense. Tex. Const. art. 5, 9 17; Code Crim. Proc. art. 21.26;Dalton v. State, 200 S.W. 385 (Tex.Crim. App. 1918). -

p.3441,. .

The Honorable Emory C. Walton - page 3 (H-815)

As provided in section 2,of article 1970-141a, the district court has jurisdiction "in allmatters of a criminal nature, except as to such jurisdictionthat the County Court has to receive and enter pleas of guilty inmisdemeanor cases as is provided in Section 1.

. . ." Thus, the district court should retain jurisdictionover misdemeanor cases presented by indictmentuntil it is known that the defendantwill enter a guilty plea. Also, it shouldbe noted thatwhen the district court has obtained jurisdictionby the return of an indictmentcharging a felony offense, jurisdictionis not lostby the fact that, uponmotion of the State, the charge is reduced to a misdemeanor to which the defendantpleads guilty. Bruce v. State, 419 S.W.2d 646 (Tex.Crim.App. 1967);Mock Eate, 298 S.W.2d 583 (Tex.Crim. App. 1957). -- Accordingly then, your inquirymust be limited to the proper court in which misdemeanor cases shouldbe presented by information in Eastland County.
As provided in section 1 of article 1970-141a, the criminal jurisdictionof the county court is limited to the receiving and entering of guilty pleas inmisdemeanor cases. In our opinion, the clear implicationof the statute is that the prosecuting attorney shouldpresent an information in the county court only in those cases in which he reasonablybelieves in advance of filing that the defendantwill enter a plea of guilty. In all other instances,the case shouldbe filed in the district court. Of course, if a defendant actually enters a plea of not guilty after the case has been filed in the county court, the case must be transferredto the district court for trial. Likewise, if a defendant resolves to enter a guilty plea subsequentto filing in district court, the case shouldbe transferredto the county court for receipt and entry of the plea of guilty.

As to the former appellate jurisdictionof the county court, it is clear that such jurisdiction is now in the district court, since the very nature of an appeal from a justiceor municipal court implies a plea of not guilty.

p.3442The Honorable Emory C. Walton - page 4 (H-815)

Your next question is whether the district clerk and county clerk should collect the fees normally applicable to their respective offices in each case originally filed in the respective courts. In the absence of statutory indication to the contrary,we answer this question in the affirmative.

you also ask whether the district clerkmay collect any fees of office when a criminal case is transferred from the county court to the district court on a plea of not guilty. Section 4 of article 1970-141aprovides:

The clerk of the County Court of Eastland County is, and he is hereby requiredwithin twenty (20)days after thisAct takes effect to filewith the clerk of the District Court of said county all originalpapers in cases here transferredto the said District Court, and all Judges' dockets and certified copies of any interlocutory judgment,or other order entered in theminutes of the County Court in saidcases so transferred:and the district clerk shall immediatelydocket all such cases on the docket of the District Court of Eastland County in the samemanner and place as each stands on the docket of the County Court. It shall not be necessary that the district clerk.refileanv wawers theretofore filedby the county cierk; nor shallhe receive 9 fees for the filinofthe-=, but papersinxidase *ring defile mark of the county clerk, prior to the time of said transfer,-shallbe-held to have been filed in the case as of the date filedwithout being refiledby the district clerk. Said county clerk in cases so transferred shall accompany the paperswith a certifiedbill of cost and against all cost deposits, if any, the county clerk shall charge accrued fees due him, and the remainderof the deposit he shallpay to the district clerk as a deposit in the particular case forwhich the samewas deposited. Credit shall also be given the litigants for all jury fees paid in the County Court. (Emphasisadded).

p.3443. .

The Honorable Emory C. Walton - page ,5(H-815)

Although section 4 appears to be limited in application to those cases transferredto the district courtwithin 20' days from the effective date of the statute,we believe that a similar result obtainswith regard to all cases thereafter transferred to the district court. Certainly, the district clerk should not be permitted to collect from a defendant those same feeswhich have previouslybeen assessedby the county clerk. Neither do we believe that the district clerk may collect any fees of office from the county clerk. In Attorney General Opinion C-789 (1966),this Office held that

[tlhereis no authority in the statutes of the State of Texas which would authorize an initiatingcounty to pay court costs to another county on a change of venue.
In our opinion, this is a soundprinciplewhich ought to be applied to transfers from the county court to the district court. Accordingly, it is our view that, at leastwith respect to fees already billed by the county clerk, the district clerkmay not collect any fees of office when a criminal case is transferred from the county court to the district court on a plea of not guilty.

your last two questions inquire about the.amount, if any, which a district clerk and/or a county clerkmay collect from a defendant in a criminal case as a fee for the offices of criminal district attorney and county judge. Article 1061, Code of Criminal Procedure,prescribes a fee of $15, to be taxed against the defendant for district and county attorneys where a conviction is obtained in anymisdemeanor proceeding or pursuant to the laws against gaming. No fee is authorized for convictionof any other felony, and, in the absence of statute,nonemay be assessed. With regard to the office of county judge, article 1052, Code of Criminal Procedure,provides for a fee to be paid to the county judge "for each criminal action tried and finally disposed of before him," but such fee is a cost payable by the county rather than by the defendant. Since no statute authorizes a county clerk to collect from a defendant in a criminal case any fee for the office of county judge, it is our opinion that no such feemay be assessed.

p.3444I

.

The Honorable Emory C. Walton - page 6 (H-815)

S U.MMARY Misdemeanor cases in Eastland County should be filed in the county court only in those instances inwhich the county attorney reasonably believes that the defendantwill enter a guilty plea. All other misdemeanors shouldbe filed in the district court. The district and county clerks should collect the fees normally applicable to their respectiveoffices in each case originally filed in the respective courts. /-yery trulyyours,

Attorney General of Texas
APPROVED:

DAVID M. KENDALL, FirstAssistant

Opinion Committee jwb

p.3445