1 January 20, 1975

The Honorable Gus L. Lanier Opinion No. H- 500 7 County Attorney 1 Walker County Re: Propriety offiling county

P. 0. Box 425 court misdemeanor cases in Huntsville, Texas 77340 ajustice ofthe peace court. Dear Mr. Lanier:

You have asked our opinion concerning the propriety offiling complaints alleging offenses within thejurisdiction ofa county court in ajustice ofthe peace court, specifically requesting answers to the following questions:

1. May complaints for Class A and Class B misdemeanors be made before aJustice ofthe Peace? 2. May the Justice ofthe Peace before whom the subject complaints are made, docket said complaints and issue warrants ofarrest based on said complaints, when the defendant is not then in custody? 3. May the Justice ofthe Peace admit the persons arrested to bail on said complaints for Class A and Class B misdemeanors? 4. May the Justice ofthe Peace before whom such complaints are made and docketed thereafter transfer said complaints, warrants ofarrest, 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. 2250The 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 thejurisdiction ofthe county courts to try and decide. Such offenses cannot be disposed ofon the merits in ajustice court. Tex. Const. art. 5, sets. 16, 19; Code Crim. Proc. arts. 4.07, 4.11.

However, ajustice ofthe peace, in addition tohaving 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 toperform the duties of a magistrate as set out in article 2.10, Code of Criminal Procedure:Itis the duty of every magistrate to preserve

the peace within his jurisdiction by the use ofall lawful means; to issue all process intended to aid in preventing and suppressing crime; to cause the arrest ofoffenders by the use oflawful means in order that they may bebrought to punishment. (Emphasis added). All magistrates are empowered toissue warrants ofarrest under the authority ofarticle 15.03, Code of Criminal Procedure which reads in part: (a)A magistrate may issue awarrant ofarrest or

a summons:

. . . . 2, When any person shall make oath before the magistrate that another has committed some offense against the laws ofthe State
. . . . Article 15.04 ofthe Code further provides:

The affidavit made before the magistrate or district or county attorney is called a “complaint” ifit charges the commission ofan offense.

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

Itis clear that any and all offenses defined by the criminal laws ,of Texas, felonies and misdemeanors ofwhatever classification, may be made known toany magistrate, including ajustice ofthe peace, by complaint and that any magistrate can issue awarrant ofarrest 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 bemade before a justice of the peace, and if the complaint discloses such an offense, thejustice may accept and docket the complaint and issue awarrant ofarrest (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 ofajustice ofthe 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 ofthe 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 ofany affidavit filed” with such accusation, advise the defendant ofvarious rights, and “admit the person arrested to bail ifallowed by law. ” (Emphasis added). Code Grim. Proc. art. 15.17.

Acting inhis capacity as amagistrate, thejustice ofthe peace may, “by law, ” release the arrested person upon the giving ofproper bail. Code Crim. Proc. arts. 17.04, 17.25 and 17.29. (And see articles 17.08 et seq. ofthe Code for the requisites ofa bail bond). The justice ofthe peace may alternatively release the defendant onhis personal bond. Code Crim. Proc. art. 17.03.

**Your** third question is, therefore, answered “Yes. ” Ajustice of the peace before whom an arrested defendant is brought may release the defendant to bail in any case, including those cases inwhich a Class A or Class B misdemeanor is charged.

**Your** fourth question deals with the transfer ofClass A and Class B misdemeanor cases to the county court for ultimate hearing and determination. The filing of complaints in thejustice court charging misdemeanors over which the county court has jurisdiction with a subsequent transfer to the

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..-....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, 137S.W. 696 (Tex. Grim. App. 1911), Ex parte Holcomb, 131S.W. 604 (Tex. Crim. App. 1910); and Lindley v. State, 123 S.W. 141 (Tex. Crim. App. 1909).

The precise question was considered inAttorney General Opinion V-946 (1949), which held:

[I]t is our opinion that the Justice ofthe Peace may accept the complaint inyour fadual situation, issue awarrant, and require bail. But all papers in the case should be forwarded tothe 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 ofthe offense of driving while intoxicated. An earlier opinion seems tohave held tothe contrary. Attorney General Opinion O-6742 (1945). However, the opinion is unclear: it makes no reference to the authority ofajustice ofthe peace as a magistrate and was not cited inAttorney General Opinion V-946 (1949). Ifthe earlier opinion was ever authority that ajustice cannot accept complaints alleging offenses beyond thejurisdiction ofthe **justice** court and then transfer the matter to county court or other court with appropriate jurisdiction, it was not only wrong butwas implicitly overruled byAttorney General Opinion V-946 (1949).

Inany event, the language of thepertinent statutory provisions ofthe Code of Criminal Procedure makes it clear that the transmission ofthe complaint, warrants ofarrest, and bond to the county **court by**  thejustice is permissible and proper.

Chapter Seventeen, Code of Criminal Procedure, deals exclusively with bail after arrest. After concluding the proceeding inwhich bail is granted or refused, the magistrate has certain duties as set out in article 17. 30 ofthe Code:

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

The magistrate, before whom an examination has taken place upona criminal accusation, shall certify toall the proceedings had before him, as well as where he discharges, holds tobail or commits, and transmit them, sealed up, tothe court before which the defendant may be tried, writing his name across the seals ofthe envelope. The voluntary statement ofthe defendant, the testimony, bail bonds, and every other proceeding in the case, shall be thus delivered to the clerk ofthe proper court, without delay. Article 17.31describes the procedures to befollowed after transfer

“to the court before which the defendant may be tried” and provides: Ifthe proceedings be delivered to a district clerk, he shall keep them safely and deliver the same to the next grandjury, Ifthe proceedings are delivered to a county clerk, he shall without delay deliver them to the district or county attorney ofhis county. (Emphasis added). Where a complaint and other papers involving Class A and Class Bmisdemeanors are delivered to the county clerk and in turn delivered to the district or county attorney, such attorney will cause an information to be ~filedin 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 ajustice ofthe 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 ajustice ofthe peace. Thejustice may docket such complaints and issue warrants ofarrest

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

thereon. After arrest, the arrested persons may be admitted tobail by thejustice ofthe 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 onthe complaint. Very truly yours,

Attorney General of Texas APPROVED:
h& DAVID M, KENDA&L, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee

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