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January 27, 1971

HonorableNed Granger CountyAttorney **County** Courthouse

- Austm, TeXaS Opinion No. M-776 Re: Does Article

._ * ^-_ veznon's I;oaeof Criminal Procedure, require that the Justice of the Peace present the State's case in a non-jury criminal trial in the absence of the county Dear Mr. Granger: attorney? Your recent letter to this of.ficerequests our opinion as towhether a Justice of the Peace,'inview of Article 15.36ofVernon's Code of Criminal Procedure, is required topresent the State's ca.sein a non-jury criminal trial in the absenceof the county attorney or his assistant. Our opinion is that the Justice of the Peace has no power or authority to present the State's case in a criminal trial in the absence of the county attorney or his assistant. Section 21 **of** Article V, Constitution of Texas, provides, in part, that, I

. . . The County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties;but if any county shallbe included in a district in which there shallbe a District Attorney, the respectiveduties of District Attorneys and County Attorneys shall in such counties be regulatedby the Legislature.

. .* Article 2.02,Vernon's Code **of** Criminal Procedure, likewise provides that, "The county attorney shall attend the **terms** of court~inhis county belowthe grade of district court,and shall represent the State in all criminal‘casesunder examination or prosecution in said county; . . ." -3779-HonorableNed Granger, Page 2 (M-776 )

We find no authority in the statutes or the Constitu**tion** for .kheJustice of the Peace topresent the State's case or represent either the State or the defendant under any circumstance*.

“All prosecutions in a corporation court shall be conducted by the city attorney of suck city, **town** or village, or by his deputy. The county attorney of the county inwhich said city, town or village is situatedmay, if he so desires, also represent the State in suchprosecutions. In such casea, the said county attorney shall not be entitled,to receive any fees or other compensation **whatever** for said services. The county attorney shallhave no power to dismiss anyprosecution Fending in said court unless for reasons filed and approvedby the recorder." Inview of this Article, thoseprosecutions originating in a corporation court,must be conductedby a city attorney or by his deputy or by the county attorney. Article 30.01, Code of Criminal Procedure, provides that no Justice of the Peace shall sit in any case if he has ever been counsel for either the State or the accused: andArticie 2378,Vernon's Civil Statutes, inprescribing disqualifications of the Justice of the Peace. declares thathe shall not sit I. . . in a causewhere he may be interested.

. .'I If t!!eJustice of the Peace should attempt to present the case for the State or represent to any degree eitherparty to theproceeding, he would therebydisqualify himself to **sit** as the judge in the case. A trial judgemay ask questions of awitness to enable him to i3akeen intelligent rulingor tomake ciear certain features of the testimony:his authority,however, falls far short of "presentationof" the State's case. Texas Digest, Crim. Law 656, 656(2), 1166 l/2(12), and Witnesses 246. **Therefore,** considering all laws on the subject inpara materia and harmonizing them, 0~1 opinion is thatArticle **45.36,** Vernon's Code of Criminal Procedure, merely imposes upon the.Justice of the Peace, in the interest of justice,

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**-3780-**Honorable Ned Granger, Page 3 (M-776 )

the duty to examine thewitnesses if the State or the defendant is not representedby counsel. The statute does not imply that the Justice of the Peace shallhave the authority to undertake the representation of the State's interest. SUMMARY Article 45.36,VernonIt,Code of Crizi-al ?'r:c,;_L*<:::?. does not authorize or require the Just.xc cc ii,a Peace topresent the State's case or uzlarr3ke the representationof the Staxe's i;.;zssz :r; **any** casebefore him. Ve,# truly yours, /I 24 'h?-.,.

_ gL$-Jy ;~;y;.&tiL./ Xktornq Ganerai cf Texas Prepared by Robert Darden Assistant AttorneyGeneral APPROVED: OPINION COi4MITTEE Xerns Taylor, Chairman W. E. Allen, Co-Chairman Jay Floyd Sam Jones John Reese Gordon Cass MEADE F. GRIFFIN Staff LegalAssistant ALFRED WALKER Executive Assistant NOLA WHITE **First** Assistant