i .. 

January 27, 1971 

Honorable Ned Granger 

County Attorney 

County Courthouse - 

Austm, TeXaS 

Opinion No. M-776 

Re: Does Article 

._ * ^-_ veznon's I;oae of 

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.fice requests our opinion 

as to whether a Justice of the Peace,' in view of Article 

15.36 of Vernon's Code of Criminal Procedure, is required 

to present the State's ca.se in a non-jury criminal trial 

in the absence of 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 shall be included in a district in which 

there shall be a District Attorney, the respective duties of District Attorneys and County 

Attorneys shall in such counties be regulated by 

the Legislature. . .* 

Article 2.02, Vernon's Code of Criminal Procedure, likewise provides that, 

"The county attorney shall attend the terms of 

court~in his county belowthe grade of district 

court, and shall represent the State in all 

criminal‘cases under examination or prosecution in said county; . . ." 

-3779- 
Honorable Ned Granger, Page 2 (M- 776 ) 

We find no authority in the statutes or the Constitution for .khe Justice of the Peace to present 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 in which said city, town 

or village is situated may, if he so desires, 

also represent the State in such prosecutions. 

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 shall have no power to dismiss 

any prosecution Fending in said court unless 

for reasons filed and approved by the recorder." 

In view of this Article, those prosecutions originating in 

a corporation court, must be conducted by 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: and Articie 

2378, Vernon's Civil Statutes, in prescribing disqualifications of the Justice of the Peace. declares that he shall 

not sit I. . . in a cause where he may be interested. . .'I 

If t!!e Justice of the Peace should attempt to present the 

case for the State or represent to any degree either party 

to the proceeding, he would thereby disqualify himself to 

sit as the judge in the case. 

A trial judge may ask questions of a witness to enable 

him to i3ake en intelligent ruling or to make ciear certain 

features of the testimony: his authority, however, falls far 

short of "presentation of" 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 in para 

materia and harmonizing them, 0~1 opinion is that Article 

45.36, Vernon's Code of Criminal Procedure, merely imposes 

upon the.Justice of the Peace, in the interest of justice, 

I 

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

the duty to examine the witnesses if the State or the 

defendant is not represented by counsel. The statute 

does not imply that the Justice of the Peace shall have 

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 to present the State's case or uzlarr3ke 

the representation of the Staxe's i;.;zssz :r; 

any case before him. 

Ve,# truly yours, 

/I 24 'h? -.,. _ 

gL$-Jy ;~;y;.&tiL./ 

Xktornq Ganerai cf Texas 

Prepared by Robert Darden 

Assistant Attorney General 

APPROVED: 

OPINION COi4MITTEE 

Xerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Jay Floyd 

Sam Jones 

John Reese 

Gordon Cass 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant