DAN MORALES

ATTORSEY GENERAL 

# @fficeof t&zRlttornep .&dateof llCexae

December 20, 1993 

# @enera

Ms. LaVonne Garland Interim Director Texas Board of Architectural Examiners 8213 Shoal Creek Boulevard, Suite 107 Austin, Texas 78758-7589 Opinion No. DM-277

Re: Whether complaints under V.T.C.S. article 2494 section 13, may be tried in justice courts as class C misdemeanors (RQ-2 15)

Dear Ms. Garland:

Your predecessor requested our opinion concerning the e.tTect of the 1991 amendment to section 12.23 of the Penal Code upon V.T.C.S. article 249a, section 13. The 1991 amendment to section 12.23 raised the maximum tine for a class C misdemeanor from $200 to S5OO.t Section 13 defines the unauthorized practice of architecture as a misdemeanor punishable by a tine ranging from $250 to $l,000.2

Your predecessor asked:
Pursuant to [the 1991 amendment] increasing the fine amounts for Class C misdemeanors to Five Hundred Dollars (SSOO.OO), may complaints tiled under Article 2494 Texas Revised Civil Statutes Annotated, regarding non-registrant violations be tried in Justice Courts as Class C misdemeanors? There are two parts to this question: (1) may complaints filed under article 249a be tried
aa class C misdemeanors? and (2) may complaints under article 249a be filed and tried in justice court?

We apply the following considerations in answering the first part of the question. Section 1.03 of the Penal Code provides in part: “[T]he punishment affixed to an offense

1kaa1 Codesection 12.23now reads: “Anindividual adjudged guiltyofa ClassCmibmeanor shallbepmdshcd

bya fine nottoexceedSSOO.”
?ktion 13ofarticle249a, V.T.C.S.,provides in part:“(a) Ifanyperson. shall, fora fee or otherdirectcompensation, pmwe the practiceof the professionof architechuein this Stateas herein defined,. withoutfirsthaving compliedwith the provisionsof this Act, such personshall be deemed guilty of a misdemeanor and upon convictionthereofshall be fined not less than Two HundredFifty Dollma($250.00)andnotmorethanOneThousand Dollars(Sl,OOO.OO)

foreachoffense.”Ms. LaVonne Garland - Page 2 (DM-277)

defined outside this code shall be applicable unless the punishment is classiied in accordance with this code.” Penal Code $1.03(b). The offense defined in section 13 is not an offense defined in the Penal Code. Furthermore, article 249a does not classify a violation of section 13 as a class C misdemeanor.

For the foregoing reasons, we conclude that the class C misdemeanor fine limitation set forth in section 12.23 of the Penal Code has no bearing on the range of fines established in section 13 of article 249a, V.T.C.S. Violations of article 249a, section 13, may not be tried as class C misdemeanors. Regarding the second part of the question, the Texas Constitution grants jurisdiction to thejustice courts as follows:

Sec. 19. Justice of the peace courts shall have original jurisdiction in criminal matters ofmisakmecmorcasespunishable by fine only, exclusive jurisdiction in civil matters where the amount in controversy is two hundred dollars or less, and such other jurisdiction as may be provided by law.
Tex. Const. art. V, 8 19 (emphasis added). The punishment provided in article 249a, section 13, is a fine only. Therefore, it appears that the justice court has original jurisdiction of violations of article 249a, section 13, by virtue of section 19 of article V of the constitution.

On the other hand, article 4.11 of the Code of Criminal Procedure purports to establish the following monetary limitation on the criminal jurisdiction of the justice courts: “Justices of the peace shall have jurisdiction in criminal cases where the tine to be imposed may not exceed five hundred dollars.” Unlike the constitutional provision, article 4.11 does not expressly lit justice-court jurisdiction to criminal cases punishable “by fine only” and therefore might be construed literally as a grant of additional jurisdiction of crimmal cases punishable by fine and some other penalty rather than as a limitation on the justice court’s constitutional, fine-only jurisdiction. Nevertheless, the provision’s statutory predecessor, which also lacked such an express limitation, was construed in the case of Ex parte Morris, 325 S.W.2d 386, 388 (Tex. Grim. App. 1959), as impliedly incorporating the fine-only jurisdictional limitation by its codification from an even earlier statute, which did contain the express limitation. AccordExparte Howard, 347 S.W.2d 721 (Tex. Grim. App. 1961). We therefore construe the current article 4.11 as a purported statutory limitation of jurisdiction to criminal cases punishable by a fine only in the the maximum amount of $500 or less. This construction of article 4.11, contrary to the constitutional grant of jurisdiction, would deny the justice courts jurisdiction over prosecutions under article 2494 section 13, because the tine under section 13 may exceed $500.

p. 1453Ms. LaVonne Garland - Page 3 (DM-277)

The inconsistency between section 19 of article V of the Texas Constitution and article 4.11 of the Code of Criminal Procedure arose in 1985, when the constitutional provision was amended. See SIR. 14, Acts 1985, 69th Leg., 5 7, at 3359. Before the constitutional amendment, both provisions contained a $200 limitation on the criminal jurisdiction of the justice courts. Compare Tex. Const. art V, Q 19, us umenakd by H.J.R. 37, Acts 1977, 65th Leg., $ 1, at 3372 (prior version of article V, section 19:

“Justices of the peace shah have jurisdiction in criminal matters of ah cases where the penalty or fine to be imposed by law may not be more than for two hundred dollars”) with Acts 1965, 59th Leg., ch. 722, $ 1, at 331 (prior version of article 4.11: “Justices of the peace shah have jurisdiction in crimimd cases where the fine to be imposed by law may not exceed two hundred dollars”); cf: S.J.R. 14, Acts 1985, 69th Leg., § 7, at 3359 (limitation struck out in resolution to amend constitution). Article 4.11 was amended to its current form in 1991. See Acts 1991, 72d Leg., ch. 108, 5 4.3 We have found nothing in the legislative history of the 1991 amendment to shed light on the legislative intent, if any, in regard to the conflict between the statute and the constitutional provision.
After due consideration, we conclude that the $500 limitation in article 4.11 of the Code of Criminal Procedure is unconstitutional because it would deprive the justice courts of some of their jurisdiction. This conclusion is based on the principle that the legislature
can add to, but it cannot take away from, the jurisdiction granted to the district wurts and inferior wurts in the constitution.
This principle has been applied in several cases involving the jurisdiction of the district wmts. Thus, inReosonover v. Reasonover, 58 S.W.2d 817 (Tex. 1933), the court held unwnstitutional a statute that purported to withhold from a certain district court jurisdiction of all causes for divorce and adjudication of property rights related thereto and to confer exclusive jurisdiction of those causes to a criminal district court. The supreme court decided that the statutory attempt to oust the district wurt of such jurisdiction violated section 8 of article V of the wnstitution, which granted the district court “original jurisdiction ‘of all cases of divorce.‘” Id. at 818 (quoting Tex. Const. art. V, $8 (1891)). The court noted the language in the 1891 amendment to section 1 of article V of the wnstitution, providing that the legislature “‘may conform the’jurisdiction of the district and other inferior courts [Ito’” the jurisdiction prescribed for other wurts that it establishes, id., and construed the provision to mean that the legislature could make the district wurt’s jurisdiction concurrent with that of any statutory court but could not deprive the district court of its constitutional jurisdiction:

3HouseBill 407 of the 72d Legislatu~, which amendedarticle4.11, also amended,inter ah, seaion 12.23ofthe Penal Codeto increase theclassCmisdemcanorfinemaximumfromS200to'S500. Acts 1991,72d Leg.,ch. 108,8 1,at681.

p. 1454Ms. LaVonne Garland - Page 4 (DM-277)

The amendment to section 1, article 5, adopted in 1891, does not purport to take away from the district court, or to authorize the Legislature to take away from it, its constitutional jurisdiction. It does authorize the Legislature to take from it the exclusive nature of itsjurisdiction over the subjects mentioned in section 8, article 5, and permits the Legislature to give jurisdiction over them also to other courts. Id. at 819; see Lord v. Clgvton, 352 S.W.2d 718, 721-22 (Tex. 1962) (adhering to Reasonover holding); see also Jordan v. Crudgiqton, 231 S.W.2d 641, 643 (Tex. 1950) (observing that statute creating court of domestic relations did “not undertake to divest any court of its wnstitutional jurisdiction and vest same exclusively in the wurt of domestic relations”).
The holding of Reasonover applies with equal force to the justice courts because section 1 of article V of the constitution applies by its express terms to courts inferior to the district court. That provision still reads, in pertinent part: “The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organixation thereof, and may conform the jurisdiction of the district and other inferior courts thereto.” Tex. Const. art. V, 8 1 (emphasis added).

In Attorney General Opinion TM-1089 (1989) we decided that the 1985 amendment to section 19 of article V of the constitution controlled over the $200 jurisdictional limitation then contained in article 4.11 of the Code of Criminal Procedure. We also decided in that opinion that the constitutional amendment’s “provision for justice court jurisdiction over ‘misdemeanor cases punishable by fine only’ does not require further legislative action to be given effect.” Attorney General Opinion JM-1089 at 2. We here reaflirm that opinion4 and add that the 1991 amendment to article 4.11 is unconstitutional and void to the extent it purports to increase the limitation to $500.5 Therefore, we conclude that complaints under article 249a may be filed and tried injustice wurt.

41~L*ter OpinionNo. 92-23 (1992) this 0ffiice wntmdkted the holding 0f Atto cheral Opinion JM-1089

thattheprovision

of justicecourt

jurisdiction

of“misdemeanor

cam punishable

byfine only”contained

in section 19ofarticle

Vis self-enacting.

Letter Opinion No.92-23 is overrated.

‘Lesttherebewnfusion,weemphaskethatthisopinionhasno application to thejurisdictionof the wmts overclassA,B, and C misdemeanors as thoseoffensesaredefined,respectively, in PenalCode sections12.2

1through 12.23.Regar&ssofwhether or notthe $500

limitationin article4.11ofthe Code ofCrimiaalProwlure isvalid,thejusticecourtshave jurisdiction,Tex. Const.art.V, 8 19, overclass C misdemeanors

becausethoseoffensesarepunishable onlybya fine ofa maximumamountnot exceeding $500. PenalCode5 12.23. ClassA andB misdemeanors arepunishable

byfine orconfinement

injail, or both(thatis, notbyfine only). Id. @ 12.21- .22.

p. 1455Ms. LaVonne Garland - Page 5 (DM-277)

SUMMARY
The $500 maximum fine limitation for class C misdemeanors set forth in section 12.23 of the Penal Code does not apply to the misdemeanor of unauthorized practice of architecture defined in V.T.C.S. article 249a, section 13, which sets punishment as a tine ranging from $250 to $1,000. The $500 limitation on the criminal jurisdiction ofjustice courts contained in article 4.11 of the Code of Criminal Procedure is void for violation of section 19 of article V of the Texas Constitution, which contains no maximum liit on that wurt’s jurisdiction over fine-only misdemeanors. Article V, section 19, does not require legislative implementation; therefore, complaints under article 249a may be filed and tried in justice wurt. Letter Opinion No. 92-23 (1992) is overruled.

DAN MORALES Attorney General of Texas

WILL PRYOR Fist Assistant Attorney General

JORGE VEGA Deputy Attorney General for Litigation

RBNEA HICKS State Solicitor

MADELEINE B. JOHNSON Chair, Opinion Committee Prepared by James B. Pinson Assistant Attorney General