THE ATTOIWEY GENERAL 

Q,P TEXAS 

AUSTIN 11. TEXAS 

November 14, 1963 

Hon. Hulon B. Brown . , District Attorney 

2nd and 145 Judicial 

Districts of Texas 

Jacksonville, Texas 

Opinion No. C-177 

Re: Construction of Articles 

Dear 

upon 

296, 297 and 299, of the 

Texas Code of Criminal 

Procedure, Relative to 

the handling of felony 

complaints by a Justice 

Sir: of the Peace. 

Your recent request for an opinion of this Department 

the questions as are herein stated has been received. _ 

quote from your letter as follows: 

"A few weeks ago I talked with someone 

there in your office relative to a situation 

which has caused us considerable inconvenience and loss of efficiency in the Processing of felony complaints filed in Angellna 

County. This has to do with the action by 

the Justice of the Peace of Precinct No. 1 

of Angellna County, Texas, wherein each time 

a felony complaint Is filed in his court, he 

Immediately seals up the complaint in a red 

jacket and turns the complaints (along with 

any other papers filed in connection with. the 

case), over to the district clerk. He has 

instructed the district clerk that these are 

not to be opened or turned over to anyone 

except the grand jury. 

"I am enclosing an article from the 

Lufkin newspaper wherein this Justice of the 

Peace tried to explain his position. 

will note, he relies primiarily on Art~$%ou296, 

297 and 299 of the Code of Criminal Procedure 

. . . . I do not believe your office has ever 

written an opinion on this question, but I 

would appreciate your doing so in order that 

we might alleviate this . . . handling of 

these matters. 

-867- 

We 
Hon. Hulon B. Brown, page 2 (c-177) 

Article 296 of Vernon's Code of Criminal Procedure provides: 

"The magistrate, before whom an examination has taken place upon a criminal accusatlon, shall certify to all the proceedings had before him, as well where he dlscharges, holds to ball or commits, and transmit them, sealed up, to the court before which 

the defendant may be tried, writing his name 

across the seals of the envelope. The voluntary statement of the defendant, the testimony, 

bail bonds, and every other proceeding in the 

case, shall be thus delivered tollthe clerk of 

the proper court, without delay. 

Article 297 of Vernon's Code of Criminal Procedure provides: 

"If the proceedings be delivered to a 

district clerk, he shall keep them safe& 

and deliver the same to the next grand jury. 

If the proceedings are delivered to a county 

clerk, he shall without delay deliver them 

to the iistrict or county attorney of his 

county. (Emphasis added) 

Article 299 of Vernon's Code of Criminal Procedure provides: 

"The accused may waive an examining 

trial in any bailable case and consent for 

the magistrate to require ball of him; but 

the prosecutor or magistrate may examine 

the witnesses for the state as in other cases. 

The magistrate shall send to the proper 

clerk with the other proceedings in the 

case a list of the witnesses for the State, 

their residence and whether examined." 

The court in Duncan v. State, 102 Tex.Crim. 612, 279 S.W. 

457 (1926) when construing Article 347 of the 1911 Code of 

Criminal Procedure (which is virtually the same article as 

Article 296) stated: 

"We are unable to conclude that a reversal 

of the judgment of the conviction in this case 

can be justly found on the failure of the magistrate in the examining court to certify, 

seal, and deliver to the clerk of the court 

-868- 
Hon. Hulon B. Brown, page 3 (C-177) 

the proceedings In the examining court. m 

purpose of this statue is that these records 

may be Dreserved for use by the nrand jury and 

for the Drosecutinn officers." (Emphasis added) 

Article V, Section 21, of the Texas Constitution authorizes the county attorney, and In some instances, the district 

attorney, and makes It their duty, to represent the State of 

Texas in all cases in the district or inferior courts of their 

respective counties. It should further be noted that in discussing Article V, Section 21, of the Texas Constitution in 

SheDDerd v. Alanlz, 303 S.W.2d 846, (Tex.Civ.App. 1957), it 

was stated: 

"It has always been the principal duty of 

the district and county attorneys to investigate 

and prosecute the violation of all criminal laws 

. . . and these duties cannot be taken away from 

them by the legislature and given to others. 

The objects of the Code of Criminal Procedure can be 

found in Article 1 of the Code which provides: 

"This code is intended to embrace rules 

applicable to the prevention and prosecutlcn of 

offenses against the laws of this State, and to 

make the rules of proceeding in respect to the 

prevention and punishment of offenses intelllgible to the officers who are to act under them, 

and to all persons whose rights are to be affected 

by them. It seeks: 1. To adopt measures for 

preventing the commission of crime. 2. To exclude 

the offender from all hope of escape. 3. 32 

insure a trial with ris little delav as is consistent with the ends of justice. 4. To bring 

to the investigation of each offense on the 

trial all the evidence tending to produce conviction or acauittal. 5. To Insure a fair and 

impartial trial and 6. The certain execution of the sentence of the law when declared." 

(Emphasis added) 

Further evidence of the intent of 

ing this code can be seen in the first 

of Vernon's Code of Criminal Procedure 

follows: 

the legislature in passsentence of Article 3, 

which reads in part as 

"In all criminal prosecutions the accused 

shall have a 

jury. . . . 

,, @T;;ga;;;l;;d;;;al by an Impartial 

-869- 
-- . 

Hon. Hulon B. Brown, page 4 (C-177) 

Article 23 of Vernon's Code of Criminal Procedure further 

advises the user of the Code how to construe It. Article 23 

provides: 

?he provisions of this Code shall be liberally 

construed, so as to attain the objects Intended 

by the legislature: 

punishment of crime.' 

prevention, suppression and 

Thus it can be seen that in light of the articulation of 

the legislature in Article 23, Article 3, Article 1 and the 

other Articles of the Code of Criminal Procedure noted above, 

that the Intent was to not deter the district attorney's 

investigation of felony cases. We are of the opinion that the 

magistrate should abide by the provisions of Article 296 and 

transmit, sealed up, all the proceedings held before him in 

an examinln trial. 

Legislature 8 However, we do feel that in light of the s language regarding speedy trials, liberal construction, and the gathering of all evidence in an investlgatlon, that the duty of the clerk is discharged if he keeps 

the records safely. Construing the Articles together with 

the holding In the puncan case we feel the district attorney 

should have access to these records so that he may develop 

the prosecution of his cases prior to the time they are 

delivered to the grand jury. 

SUMMARY 

It Is the duty of the district clerk to keep 

"safely" the proceedings received from the magistrate 

who holds examining trials; however, the district 

attorney should have access to these proceedings 

so he may fully develop his case prior to the time 

they are delivered to the grand jury. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

James P. Brlscoe 

Assistant Attorney General 

JPB:cjp 
Hon. Hulon B. Brown, page 5 (C-177) 

APPROVED: 

OPINION COEPMITTEE 

V. W. Geppert, Chairman 

Cecil Rotsch 

Ben Harrison 

Scott Garrison 

Sam Lane 

APPROVED FOR THE ATTORNEY GENERAL 

JXY: Stanton Stone 

-871-