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### Tr.7~ A~RNEY GENERAL OF-XAS
AVSTIN. TExaS 78711

June 12, 3.969

Honorable Hollis D. **Gannon** District Attorney 0thJudicial District P. 0. Box 111 **Greenville,** Texas Opinion No. M-416
Re: The filing, processing and disposition of felony complaints with the Justice of the Peace and related Dear **Mr. Garmon:**  questions.
You have requested the opinion of this office **in** regard to theproper procedures tobe used in the filing, processing and disposition of felony complaints and related matters in the office of the Justice of the Peace. You pose twelve questions for our consideration andwewill set out each question and follow with our **answer** before proceeding to the **next** question. All Articles cited herein are fromVernon's Code of Criminal Procedure **unless** otherwise indicated.
"1
. Should the Justice of the Peace make amemorandum **on** his docket **listing** and identifying each **instru** ment recerved by hrs office?" The keeping of adocket reflecting criminal **matters** by a justice of thepeace isgoverned byArticles 45.13 and 45.14. These articles provide as follows:
Art. 45.13 Criminal docket "Each justice of the peace and each 

### recordershallkeepadocket **in** which he shall **enter** the proceedings **in** each trial had before him,which docket shall show:~ 1. The style of the action; 2. 

### Thenatureof the offense charged; 3. The date the **warrant was**  issued and the return made thereon:

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4. The timewhen the examination or trialwas had, and ifa trial, whether it was by a jury orby himself;
5. The verdict of the jury, if **any;** 6. The judgment and sentence of the court; 7. Motion for **new**trial, if **any,** and thedecision thereon; 8. Ifan appeal was taken; and 9. The timewhen, and themanner in which, the judgment and sentence was enforced."
Art. 45.14 To file transcript ofdocket
"Ateach term of thedistrict court, each justice of thepeace shall, **on** the first day of the term of said court for.~ their county, filewith the clerk of said court a certified transcript of the docket kept by such justice, of all criminal cases examined or tried before him since the last term of suchdistrict court: and such clerk shall immediately deliver such transcript to the foreman of the grand jury."
It isour understanding that these statutes are interpreted bymany justices of thepeace as requiring that **only** criminal cases within the jurisdiction of the justice court need be reflected in adocket book andby docket entries. However, **since** Article 45.13 refers in Subsection 4 to "examinations" aswell as trials, itwould seem that the statute expressly covers examining trials and presumably other matters involving the filing and processing of felony complaints andmisdemeanor complaints which charge offenses coming within the jurisdiction of the county court. Furthermore, Article 45.14 requires the submission of a transcript of the criminal docket kept by the justice of the peace to the grand jury. This provision clearly suggests that

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the justice of the peace docket should reflect all criminal proceedings, including felony and county court misdemeanor complaints which are filed in a justice court. Accordingly, we find that itwas clearly the intent of the Legislature in enacting Articles 45.13 and 45.14 to require the justice of thepeace tokeep adocket reflecting all criminal matters handled byhim and to note onhis docket all actions taken and all instruments received in connection with each criminal proceeding. "2
. Should the Justice of the Peace deliver all of the instruments received byhis office, including warrants, affidavits, voluntary statements, bonds, and Incidental papers sealed **in an**  envelope to theDistrict Clerk or should only the evidence obtained from **examining** trials be sealed **in** such envelopes?" Articles 15.01, et seq., including, of course, provide that amagistrate, justices of thepeace, may take **sworn** complaints of offenses allegedly committed and issuewarrants of arrest for the taking of the asserted offender. Articles 14.01 et seq.provides that arrests **can** bemade without awarrant in certain cases. Whether the arrest bemade with orwithout warrant the Code of Criminal Procedure requires that the arresting officer take theperson arrested before amagistrate, usually a justice of thepeace. the person arrested, Article 16.01, et seq., grants to the right tohave the validity of the accusation tested by an examining trial. particle 17.30 provides:
Art. 17.30 Shall certify proceedings "Themagistrate, before whom **an** examination has taken place upon a criminal accusation, shall certify to all the proceedings had before him, aswell aswhere he discharges, holds tobail or commits, and transmit them, sealed up, to the court before which thedefendant may be tried, writing his name across the seals of the envelope. T?e voluntary statem.?n;cf the defendant, the testimony, bail bonds, and every other proceeding **in** the c&e, shall be thus delivered to the clerk of the proper court, without delay." (Emphasir-supplied, -2071.Honorable Hollis D. **Garmon,** Page 4, (M-416)

**One** interpretation of this statute is that only the proceedings, 

### includingall instruments received therein, of **an** examining trial need be placed in **an** envelope, sealed and delivered to the 

### clerkofthepropercourt. However, while other magisterial proceedings need **not be**  

### sealed,areadingoftheentireCodeofCriminal Procedure suggests that itwas the legislative intent 

### thatallsuchproceedings (relating to felony 

### and county 

### courtmisdemeanorcases)should be transmitted to the appropriate court. For example, Article 17.32 requires themagistrate to filewith theproper clerk the complaint and **warrant** where **no** arrest has been made. Article 15.18provides that amagistrate who sets bail for **an** accused arrested under an out-of-county warrant shall immediately transmit the bond taken to the court having jurisdiction of the offense. Article 18.29 requires themagistrate to 

### keepa record ofproceedings had in connection with the issuance of search warrants and to deliver such

### recordsto the clerk of the proper court. Accordingly, it isour opinion that all proceedings in a justice court. including instruments received therein as apart thereof, that pertain to felony offenses or county court misdemeanor offenses, should be certified and forwarded to the court having jurisdiction over the offense **in** question. However, except for **examining** trial proceedings, the transmitted records need not be sealed inan envelope. Observation ismade that themagistrate may **not** have inhis possession for transmittal all of the instruments and papers incident to aparticular case. For example, where the sheriff or other peace officers have taken 

### bail,thebond will not be in thepossession of the magistrate. In such case, themagistrate has **no** duty to insure that thebond isdelivered to theproper court or other authority. "3
. **When** the Grand Jury receives the envelope containing the hereinbefore mentioned papers from the District Clerk, is the Grand Jury authorized to open such envelope without a Court order?"
As noted above, a justice of the peace is required to transmit instruments reflecting proceedings in criminal cases, notwithin the jurisdiction of the justice court,

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to the proper court. Article 17.30 requires that certain of these proceedings be forwarded **in a**  sealed envelope. Article 17.31 provides:
Art. 17.31 Duty of clerks who receive such proceedings "Ifthe proceedings bedelivered to a district clerk, he shall keep them safely and deliver the same to the next grand jury. If theproceedings are delivered to a county clerk, he shall without delay deliver them to the district or county attorney of his county." The above quoted statute requires the clerk to make delivery to the grand jury (orto the district or county attorney in county court cases), and **no** court order is required to effectuate such delivery and opening by the grand jury. "4
. Is the attorney for theDefendant entitled to open the envelope containing the search warrants, bonds, confessions, and other statements without a Court order?"
As noticed earlier, the district clerk is required byArticle 17.31 tokeep the sealed envelope of the **examining** trial proceedings "safely" until delivered to the grand jury. While the district or county attorney may have access to theproceedings in order toprepa-e the case forgrand jury presentation (seeAttorney General's Opinion No. C-177), the terms ofArti.:le17.31 do not expressly prohibit the clerk from allowing access to the sealed envelope to adefendant's attorney. However, the statute **cannot** be said to require the clerk todisclose the **contents** of the envelope toadefendant's attorney or to "entitle" such **attorney to**  open the envelope. Where the clerk chooses **not** topermit inspection of thepapers **in** the envelope by thedefense counsel, a court order may be sought torequire **inspection.** This order may be obtained by **a** showing of "good cause therefor" under the procedures.fordiscovery prescribed byArticle 39.14.

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### 2073

-Honorable Hollis D. **Garmon,** 

### Page6, (M-416)

**“ 5.**  Does the Justice of the Peace, in a felony case, tabulate and calculate the costs up to the point when he delivers 

### thepaperstotheDistrictClerk,**or** does tb District Clerk tabulate all of the costs ina **crimina?** case under Article 1064 revised byArticle 24101" Article 1009 requires a justice of thepeace to "keep a feebook and enter~therein all fees charged for service rendered **in any**  criminal 

### actionorproceeding", necessarily including **any** fees incurred through the filing, processing and disposition of felony complaints. The 

### recordof 

### feesthatarise from felony complaint cases are part of theproceedings in such a oase and should be transmitted along with other instruments and records to thedistrict clerk. Upon final disposition of a felony 

### case,thedistrict clerk will tabulate all fees and costs, including those incurred **in** the justice of peace proceedings.

**“ 6.**  Is the Justice of the **Peace** supposed tokeep abook showing the facts forwhich th b i f the search warrant was issued, 

### or is thatere% Eobe **sent** to the District Clerk's office?" Before a searchwarrant is issued, a **sworn** complaint, or affidavit, must be filedwith the issuing magistrate setting forth facts demonstrating that probable cause exists for the issuance of the search **warrant.** Article 18.01. The filing of the complaint and the issuance (ordenial) of the search warrant should be noted on a docket sheet. The return of thewarrant and the inventory of any property seized should also be recorded by the magistrate. Articles 18.21 and 18.27. Any hearing had on thepropriety of the issuance of thewarrant, held pursuant to the provisions ofArticle 18.23, et seq., should be noted **on** thedocket sheet together wfth the magistrate's decision in this **connection. Article**  18.29 requires themagistrate to keep a record of allproceedings and certify the search warrant proceedings and deliver them to the clerk of the court having jurisdiction of the case, including all the original papers **relating** thereto. The original docket sheet should be retained **by** the justi~ce of thepeace.

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**_**Honorable Hollis D. Garmon, Page 7, (M-416)

The answer to the foregoing question depends **on** the procedure adopted by aparticular justice of thepeace. While justices of thepeace are required to keep docket sheets relating to all criminal proceedings, there is **no** statutory provision requiring the retention of **any** record. Some justices, however, domake and retain copies of all instruments filedwith their office.

Where a complaint is filed charging **an** offense that is either a felony or a county courtmisdemeanor, the justice of thepeace will ordinarily wait until the **warrant** is executed, bail has been set and **an examining**  **triz?** held, if one isrequested, before transmittal of thepape:s to the appropriate court. However, where **no arrest**  **is** made after a reasonable time, themagistrate must transmit the complai:& and warrant of arrest (andlist of the **witnesses) -CD** **the** Proper court. Article 17.32. Often, adefendant will be arrested and themagistrate will setbail but thedefendant is unable tomake bond at the time ofhis appearance before themagistrate. In such case the proceedings, when the examining trial has either been held orwaived, should be transmitted to the court having jurisdiction. This **transmittal** should be accomplished even though "ha a.cused may later make bond with the sheriff or other peace officer, **since** it is not incumbent upon the justice of thepeace to forward **any** papers that are notwithin his possession.

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Likewise, the confession of the accused isusually of **no concern**  to themagistrate except where made during the course of **an examining**  **trial.** Where such a confession ismade, it should, of course, be forwarded to theproper clerk **along** with the other papers. However, a confession made to apeace officer or to a county ordistrict **attorney** does **not** properly become apart of **the magisterial**  records, **unless** introduced by the state **in an**  **examining trial.** 

**“ 9.**  What type, if **any,** seal isrequired **on** the **enve** lope that theJustice of the Peacewrites across orplaces **on** the envelope mentioned **In** Article 17.30?" Article 17.30 requires that examining trial proceedings shall be delivered to the proper court after they have been certified and sealed in **an** envelope. NO particular type of seal is required andwhere the envelope has its **own sealing**  **agency** orglued flap, the justice of the peace **merely writes**  his name across the **sealing** portion of the envelope. Where **sealing wax**  **is** used, the **justice** will sign **on** thewax wafer. "10. Ifaperson has **been** sentenced to the State penitentiary and Court costs have **not been**  paid, and he requests parole before his term has ended, can the County or Statemake him serve additional time to comply with Court costs, the **same as**  **we**do **in County**  Court wher.2a fine is imposed and court costs is attached under A?acle..-. 2410?" Parole from a state penitentiary isa **mc:Ltrr** for determination by the Board of Pardons and ParLies and the **Governor.** While the failure topay court costs that have **been** assessed **against** a convicted defendant is a factor tobe considered by the Board, **there is**  **LO way**  that the state or the county **can** require adefendant to serve additional **time to**  compensate for the non-payment of costs **once** parole has **been** granted. "11. Does the Foreman of theGrand Jury have the authority to call aDefendant before the Grand Jury for -- questioning, particularly where theDefendant does **not have**  **an attorney**  and has not had an attor:?eyappc.i.ntetf forhim? If the Foreman c;.?call thzDec',dant, is it **necessary** to appoint **an attorney**  for the Defendant before bringing him before the Grand Jury, giving ---I__ him thewarning,

--.,. and questioning such Defendant?"

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Honorable Hollis **D. Garmon,**  Page 9, (M-416)

Article 20.10 authorizes either the foreman of the grand jury or the **attorney representing**  the **state to**  issue process for the compulsory attendance ofwitnesses to testify before the grand jury. A defendant orperson under **investigation** by thegrand jury is not exempt from such process andmay be required to appear before the grand jury. Some district and county attorneys do require attendance by adefendant and offer tohim the opportunity to testify **in** order to forestall a claim by the defendant later that hewas not permitted to appear before the grand jury.Where adefendant is required to appear, a careful explanation ofhis rights and privileges should bemade by the foreman orby the state's attorney. The defendant should be advised that his past **actions are**  **being** inquired into by the grand jury, and he should be informed of **any accusation**  **against** him, and he should be advised of his right tohave an attorney to consult with in connection with his appearance before the grand jury; he should be advised of his right **to remain**  **silent** and ofhis right **to terminate**  the grand jury **interrogation at**  **any time**  should he **initially** decide to testify and later change hismind: he should further bewarned that **any** testimony that he gives before the grand jurymay be used as evidence **against** him ina criminal trial. Should the defendant request **the services**  of **an attorney**  and he is indigent, **one** should be appointed forhim before **any** interrogation is commenced.
It should be observed that the foregoing discussion does not deal with the power of thegrand jury to compel **a** defendant to testify, for itmay well be that an accused, pursuant to **certain** statutes authorizing theprocedure, **can** bemade to testify **in** grand juryproceedings with such compulsion nullifying any later criminal prosecution. Rather, our discussion is focused toward the practical aspects of requiring adefendant to appear before **a** grand jury.

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Honorable Hollis D. **Garmon,** Page 10, (~-416)

"12. Does the District Attorney have authority to issue a **summons** to cause **witnesses to**  bebrought before the Grand Jury or is that reserved to the Foreman of the Grand Jury, the District Clerk and the Court?" 

### Your last inquiry isanswered byArticle 20.10 which provides as follows:
Art. 20.10 Attorney or foreman may issue process "The attorney representing the state, or the foreman, in term time orvacation, may issue a summons or attachment for anywitness in the county where they are sitting; which summons or attachment may require thewitness to appear before them at a time fixed, or forthwith, without stating **the matter**  under investigation.'
It is clear that the district attorney does have the authority to issue 

### a summons to require witnesses to appear 

### beforethe grand jury.
SUMMARY

Articles 45.13 and 45.14 of the Code of Criminal Procedure require that a Justice of the Peace keep adocket reflecting all criminal matters that 

### come tohis attention inboth hismagisterial and judicial capacities. All instruments **concerning** aparticular criminal 

### matter should be forwarded to the clerk of the court having jurisdiction over the offense charged, including searchwarrant affidavits and 

### a tabulation of court costs inamagisterial proceeding. All forwarded papers are available to the grand jury for their use and consideration without **a court**  order. When adefendant has been granted parole, he **cannot** be required to serve additional time to compensate for the **non-payment** of assessed court costs.

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A defendant **can** be summoned before a arand jury;when so summoned he should be advised ofhis constitutional rights in connection with his appearance, including his right to the services of an attorney. 2 Ve*$+truly yoyrs,

C.MARTIN
Prepared by Lonny F. Zwiener Assistant Attorney General
APPROVED:
OPINION COMMITTEE Kerns Taylor, Chairman George Kelton, Vice-Chairman Ralph Rash Alfred Walker Bill Craig Robert C. Crouch
W.V. Geppert Staff Legal Assistant Hawthorne Phillips Executive Assistant

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