THE ATTOIWEY GENERAL Q,P TEXAS

AUSTIN 11.

TEXAS November 14, 1963

Hon. Hulon B. Brown

., District Attorney 2nd and 145Judicial Districts of Texas Jacksonville,Texas Opinion No. C-177

Re: Constructionof Articles

Dear

upon 296, 297and 299, of the Texas Code of Criminal Procedure,Relative to thehandling of felony complaintsby a Justice Sir: of the Peace. Your recent request for an opinion of this Department the questions as are herein statedhas been received.

_ quote fromyour letter as follows:

"A few weeks ago I talkedwith someone there in your office relative to a situation which has causedus 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 PrecinctNo. 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 jacketand turns the complaints (alongwith any otherpapers filed in connectionwith. 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 Lufkinnewspaper wherein this Justice of the Peace tried to explainhis position. will note, he reliesprimiarily on Art~$%ou296, 297 and 299 of the Code of Criminal Procedure

. . . . I do not believeyour officehas ever written an opinion on this question, but I would appreciateyour doing so in order that we might alleviate this

. . .handling of these matters.
-867- WeHon. Hulon B. Brown, page 2 (c-177)

Article 296 ofVernon's Code of Criminal Procedureprovides: "Themagistrate,before whom an examination has takenplace upon a criminalaccusatlon, shall certify to all the proceedings had before him, as well wherehe dlscharges,holds to ball or commits, and transmit them, sealedup, to the court before which the defendantmay be tried,writinghis name across the seals of the envelope. The voluntary statementof the defendant, the testimony, bail bonds, and every other proceeding in the case, shallbe thus delivered tollthe clerk of the proper court, withoutdelay. Article 297 of Vernon's Code of Criminal Procedureprovides: "If the proceedingsbe delivered to a district clerk,he shallkeep them safe& and deliver the same to the next grand jury. If the proceedings are delivered to a county clerk,he shall withoutdelay deliver them to the iistrict or county attorney of his county. (Emphasisadded) Article 299 of Vernon's Code of Criminal Procedureprovides: "The accusedmay waive an examining trial in any bailable case and consent for the magistrate to require ball of him; but theprosecutor or magistratemay examine the witnesses for the state as in other cases. The magistrate shall send to theproper clerk with the otherproceedings in the case a list of the witnesses for the State, their residenceand whether examined." The court in Duncan v. State, 102 Tex.Crim. 612, 279 S.W. 457 (1926) when construingArticle 347 of the 1911 Code of Criminal Procedure (whichis virtually the same article as Article 296) stated:

"Weare unable to conclude that a reversal of the judgmentof 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)

theproceedings 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 Drosecutinnofficers." (Emphasisadded) ArticleV, 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 furtherbe noted that in discussing ArticleV, Section 21, of the Texas Constitution in SheDDerd v. Alanlz, 303 S.W.2d 846, (Tex.Civ.App.1957), it was stated:

"Ithas alwaysbeen the principalduty of the district and county attorneys to investigate and prosecute the violation of all criminal laws

. . . and these duties cannotbe taken away from them by the legislatureand given to others. The objects of the Code of Criminal Procedure can be found in Article 1 of the Code which provides:

"Thiscode 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 rislittledelav as is consistentwith the ends of justice. 4. To bring to the investigationof 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." (Emphasisadded) Further evidence of the intent of ing this code can be seen in the first ofVernon's Code of Criminal Procedure follows: the legislaturein passsentence of Article 3, which reads in part as

"In all criminalprosecutions the accused shallhave 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 Codehow to construe It. Article 23 provides: ?he provisions of this Code shallbe liberally construed, so as to attain the objects Intended by the legislature: punishment of crime.' prevention, suppressionand

Thus it can be seen that in light of the articulationof the legislaturein Article 23,Article 3, Article 1 and the other Articles of the Code of Criminal Procedurenoted above, that the Intent was to not deter the district attorney's investigationof felony cases. We are of the opinion that the magistrate should abide by the provisions of Article 296 and transmit, sealedup, all the proceedingsheld beforehim in an examinln trial. Legislature

8 However, we do feel that in light of the s language regarding speedy trials, liberal construction,and the gatheringof all evidence in an investlgatlon, that the duty of the clerk is discharged if he keeps the records safely. Construing the Articles togetherwith theholding In thepuncan case we feel the district attorney shouldhave access tothese records so thathe 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 shouldhave access to theseproceedings sohe may fully develophis case prior to the time they are delivered to the grand jury.
Yours very truly, WAGGONER CARR AttorneyGeneral of Texas

James P. Brlscoe AssistantAttorney General JPB:cjpHon. 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-