1 

January 20, 197 5 

The Honorable Gus L. Lanier Opinion No. H- 500 

7 County Attorney 

1 Walker County Re: Propriety of filing county 

P. 0. Box 425 court misdemeanor cases in 

Huntsville, Texas 77340 a justice of the peace court. 

Dear Mr. Lanier: 

You have asked our opinion concerning the propriety of filing 

complaints alleging offenses within the jurisdiction of a county court in 

a justice of the peace court, specifically requesting answers to the 

following questions: 

1. May complaints for Class A and Class B misdemeanors 

be made before a Justice of the Peace? 

2. May the Justice of the Peace before whom the subject 

complaints are made, docket said complaints and issue 

warrants of arrest based on said complaints, when the 

defendant is not then in custody? 

3. May the Justice of the Peace admit the persons 

arrested to bail on said complaints for Class A and Class 

B misdemeanors? 

4. May the Justice of the Peace before whom such 

complaints are made and docketed thereafter transfer 

said complaints, warrants of arrest, if any, and bonds 

to the County Court where said complaints and informations, timely presented thereon by the County Attorney, 

are simultaneously filed, along with the warrants of 

arrest, if any, and bonds? 

p. 2250 
The Honorable Gus L. Lanier page 2 (H-500) 

Class A and Class B misdemeanors, which are so classified by 

section 12.03, Penal Code, are offenses which lie within the jurisdiction 

of the county courts to try and decide. Such offenses cannot be disposed 

of on the merits in a justice court. Tex. Const. art. 5, sets. 16, 19; 

Code Crim. Proc. arts. 4.07, 4.11. 

However, a justice of the peace, in addition to having criminal 

and civil judicial duties imposed by the Constitution and laws of Texas, 

is a magistrate. Code Crim. Proc. art. 2.09. As such, he is required 

to perform the duties of a magistrate as set out in article 2.10, Code of 

Criminal Procedure: 

It is the duty of every magistrate to preserve 

the peace within his jurisdiction by the use of all 

lawful means; to issue all process intended to aid 

in preventing and suppressing crime; to cause the 

arrest of offenders by the use of lawful means in 

order that they may be brought to punishment. 

(Emphasis added). 

All magistrates are empowered to issue warrants of arrest under 

the authority of article 15.03, Code of Criminal Procedure which reads in 

part: 

(a) A magistrate may issue a warrant of arrest or 

a summons: 

. . . . 

2, When any person shall make oath before the 

magistrate that another has committed some offense 

against the laws of the State . . . . 

Article 15.04 of the Code further provides: 

The affidavit made before the magistrate or district 

or county attorney is called a “complaint” if it charges 

the commission of an offense. 

p. 2251 
The Honorable Gus L. Lanier page 3 (H-500) 

It is clear that any and all offenses defined by the criminal laws 

,of Texas, felonies and misdemeanors of whatever classification, may 

be made known to any magistrate, including a justice of the peace, by 

complaint and that any magistrate can issue a warrant of arrest based 

on such complaint. 

Your first two questions are, accordingly, answered in the 

affirmative --complaints charging the commission of Class A and Class 

B misdemeanors may be made before a justice of the peace, and if the 

complaint discloses such an offense, the justice may accept and docket 

the complaint and issue a warrant of arrest (or a summons as an alternative 

to the warrant). Code Crim. Proc. arts. 2.10, 15.03, 45.13. 

Your third question concerns the authority of a justice of the peace 

to admit persons to bail. Once an arrest has been made pursuant to the 

warrant, “the person making the arrest shall without unnecessary delay 

take the person arrested or have him taken before some magistrate of the 

county where the accused was arrested. I’ Code Crim. Proc. art. 15.17. 

At this appearance, the magistrate must advise the person arrested as to 

“accusation against him and of any affidavit filed” with such accusation, 

advise the defendant of various rights, and “admit the person arrested to 

bail if allowed by law. ” (Emphasis added). Code Grim. Proc. art. 15.17. 

Acting in his capacity as a magistrate, the justice of the peace 

may, “by law, ” release the arrested person upon the giving of proper 

bail. Code Crim. Proc. arts. 17.04, 17. 25 and 17. 29. (And see articles 

17.08 et seq. of the Code for the requisites of a bail bond). The justice 

of the peace may alternatively release the defendant on his personal bond. 

Code Crim. Proc. art. 17.03. 

Your third question is, therefore, answered “Yes. ” A justice of 

the peace before whom an arrested defendant is brought may release the 

defendant to bail in any case, including those cases in which a Class A or 

Class B misdemeanor is charged. 

Your fourth question deals with the transfer of Class A and Class 

B misdemeanor cases to the county court for ultimate hearing and determination. The filing of complaints in the justice court charging misdemeanors 

over which the county court has jurisdiction with a subsequent transfer to the 

po 2252 
l . ..-....m. -- 

The Honorable Gus L. Lanier page 4 (H-500) 

county court finds judicial approval in Duncan v. State, 279 S. W. 457 

(Tex. Crim. App. 1926), Gentry v. State, 137 S. W. 696 (Tex. Grim. 

App. 1911), Ex parte Holcomb, 131 S. W. 604 (Tex. Crim. App. 1910); 

and Lindley v. State, 123 S. W. 141 (Tex. Crim. App. 1909). 

The precise question was considered in Attorney General Opinion 

V-946 (1949), which held: 

[I]t is our opinion that the Justice of the Peace 

may accept the complaint in your fadual situation, issue 

a warrant, and require bail. But all papers in the case 

should be forwarded to the County Clerk for proper 

action. Moreover, the County Attorney should prepare 

an information, if the Justice Court complaint is otherwise in proper form, and proceed to trial in the County 

Court, said Court having jurisdiction of the offense of 

driving while intoxicated. 

An earlier opinion seems to have held to the contrary. Attorney 

General Opinion O-6742 (1945). However, the opinion is unclear: it 

makes no reference to the authority of a justice of the peace as a magistrate 

and was not cited in Attorney General Opinion V-946 (1949). If the earlier 

opinion was ever authority that a justice cannot accept complaints alleging 

offenses beyond the jurisdiction of the justice court and then transfer the 

matter to county court or other court with appropriate jurisdiction, it 

was not only wrong but was implicitly overruled by Attorney General 

Opinion V-946 (1949). 

In any event, the language of the pertinent statutory provisions 

of the Code of Criminal Procedure makes it clear that the transmission 

of the complaint, warrants of arrest, and bond to the county court by 

the justice is permissible and proper. 

Chapter Seventeen, Code of Criminal Procedure, deals exclusively 

with bail after arrest. After concluding the proceeding in which bail is 

granted or refused, the magistrate has certain duties as set out in article 

17. 30 of the Code: 

p. 2253 
The Honorable Gus L. Lanier page 5 (H-500) 

The magistrate, before whom an examination has 

taken place upon a criminal accusation, shall certify 

to all the proceedings had before him, as well as 

where he discharges, holds to bail 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 

to the clerk of the proper court, without delay. 

Article 17. 31 describes the procedures to be followed after transfer 

“to the court before which the defendant may be tried” and provides: 

If the proceedings be delivered to a district clerk, 

he shall keep them safely 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 district or county attorney of his county. (Emphasis 

added). 

Where a complaint and other papers involving Class A and Class 

B misdemeanors are delivered to the county clerk and in turn delivered 

to the district or county attorney, such attorney will cause an information 

to be ~filed in the county court. Code Grim. Proc. arts. 21. 20, 21. 22. 

We accordingly answer your fourth question in the affirmative 

--complaints and other companion papers involving Class A and Class B 

misdemeanors filed in a justice of the peace court may be transferred to 

the county court where jurisdiction for trial on the merits lies. An information may be filed by the county attorney in the county court upon the receipt 

of such complaint. 

SUMMARY 

Complaints for Class A and Class B misdemeanors 

may be made before a justice of the peace. The justice 

may docket such complaints and issue warrants of arrest 

p. 2254 
The Honorable Gus L. Lanier page 6 (H- 500) 

thereon. After arrest, the arrested persons may be 

admitted to bail by the justice of the peace. Such 

complaints, bail bonds and other companion papers 

may be transferred to the county court, and the county 

attorney may then file an information based on the 

complaint. 

Very truly yours, 

Attorney General of Texas 

APPROVED: 

h& 

DAVID M, KENDA&L, First Assistant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

p. 2255