. . 

Tr.7~ A~RNEY GENERAL 

OF-XAS 

AVSTIN. TExaS 78711 

June 12, 3.969 

Honorable Hollis D. Gannon 

District Attorney 

0th Judicial 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 the proper procedures to be 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 

and we will set out each question and follow with our 

answer before proceeding to the next question. All 

Articles cited herein are from Vernon's Code of Criminal 

Procedure unless otherwise indicated. 

" 1 . Should the Justice of the Peace make a memorandum on his docket listing and identifying each instrument recerved by hrs office?" 

The keeping of a docket reflecting criminal matters 

by a justice of the peace is governed by Articles 45.13 

and 45.14. These articles provide as follows: 

Art. 45.13 Criminal docket 

"Each justice of the peace and each 

recorder shall keep a docket in which he 

shall enter the proceedings in each trial 

had before him, which docket shall show:~ 

1. The style of the action; 

2. The nature of the offense charged; 

3. The date the warrant was issued and 

the return made thereon: 

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Honorable Hollis D. Garmon, Page 2, (M-416) 

4. The time when the examination or 

trial was had, and if a trial, whether it 

was by a jury or by 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 

the decision thereon; 

8. If an appeal was taken; and 

9. The time when, and the manner in 

which, the judgment and sentence was enforced." 

Art. 45.14 To file transcript of docket 

"At each term of the district court, 

each justice of the peace shall, on the 

first day of the term of said court for.~ 

their county, file with 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 such district court: and such clerk 

shall immediately deliver such transcript 

to the foreman of the grand jury." 

It is our understanding that these statutes are 

interpreted by many justices of the peace as requiring 

that only criminal cases within the jurisdiction of the 

justice court need be reflected in a docket book and by 

docket entries. 

However, since Article 45.13 refers in Subsection 4 

to "examinations" as well as trials, it would seem that the 

statute expressly covers examining trials and presumably 

other matters involving the filing and processing of felony 

complaints and misdemeanor 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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Honorable Hollis D. Gannon, Page 3, (M-416) 

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 it was clearly the intent 

of the Legislature in enacting Articles 45.13 and 45.14 

to require the justice of the peace to keep a docket 

reflecting all criminal matters handled by him and to 

note on his 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 by his office, including warrants, affidavits, voluntary statements, bonds, and 

Incidental papers sealed in an envelope to the District 

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 a magistrate, 

justices of the peace, may take 

sworn complaints of offenses allegedly committed and 

issue warrants of arrest for the taking of the asserted 

offender. Articles 14.01 et seq. provides that arrests 

can be made without a warrant in certain cases. 

Whether the arrest be made with or without warrant 

the Code of Criminal Procedure requires that the arresting 

officer take the person arrested before a magistrate, usually 

a justice of the peace. 

the person arrested, 

Article 16.01, et seq., grants to 

the right to have the validity of 

the accusation tested by an examining trial. particle 

17.30 provides: 

Art. 17.30 Shall certify proceedings 

"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. 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, including all instruments received therein, 

of an examining trial need be placed in an envelope, 

sealed and delivered to the clerk of the proper court. 

However, while other magisterial proceedings need not 

be sealed, a reading of the entire Code of Criminal 

Procedure suggests that it was the legislative intent 

that all such proceedings (relating to felony and 

county court misdemeanor cases) should be transmitted 

to the appropriate court. For example, Article 17.32 

requires the magistrate to file with the proper clerk 

the complaint and warrant where no arrest has been made. 

Article 15.18 provides that a magistrate 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 the magistrate to keep a record of proceedings 

had in connection with the issuance of search warrants 

and to deliver such records to the clerk of the proper 

court. 

Accordingly, it is our opinion that all proceedings 

in a justice court. including instruments received therein 

as a part 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 

in an envelope. 

Observation is made that the magistrate may not have 

in his possession for transmittal all of the instruments 

and papers incident to a particular case. For example, 

where the sheriff or other peace officers have taken 

bail, the bond will not be in the possession of the 

magistrate. In such case, the magistrate has no duty 

to insure that the bond is delivered to the proper 

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, not within the jurisdiction of the justice court, 

-2072- 
Honorable Hollis D. Garmon, Page 5, (M-416) 

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 

"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." 

The above quoted statute requires the clerk to 

make delivery to the grand jury (or to 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 the Defendant 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 

by Article 17.31 to keep 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 the proceedings in order to prepa-e 

the case for grand jury presentation (see Attorney 

General's Opinion No. C-177), the terms of Arti.:le 17.31 

do not expressly prohibit the clerk from allowing access 

to the sealed envelope to a defendant's attorney. However, 

the statute cannot be said to require the clerk to disclose 

the contents of the envelope to a defendant's attorney 

or to "entitle" such attorney to open the envelope. Where 

the clerk chooses not to permit inspection of the papers 

in the envelope by the defense counsel, a court order 

may be sought to require inspection. This order may be 

obtained by a showing of "good cause therefor" under 

the procedures. for discovery prescribed by Article 39.14. 

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Honorable Hollis D. Garmon, Page 6, (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 the papers to the District Clerk, or does tb 

District Clerk tabulate all of the costs in a crimina? 

case under Article 1064 revised by Article 24101" 

Article 1009 requires a justice of thepeace to 

"keep a fee book and enter~therein all fees charged 

for service rendered in any criminal action or proceeding", necessarily including any fees incurred 

through the filing, processing and disposition of 

felony complaints. The record of fees that arise 

from felony complaint cases are part of the proceedings 

in such a oase and should be transmitted along with 

other instruments and records to the district clerk. 

Upon final disposition of a felony case, the district 

clerk will tabulate all fees and costs, including those 

incurred in the justice of peace proceedings. 

“6. Is the Justice of the Peace supposed to keep 

a book showing the facts for which th b i f the 

search warrant was issued, or is thatere% Eo be sent 

to the District Clerk's office?" 

Before a search warrant is issued, a sworn complaint, 

or affidavit, must be filed with 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 

(or denial) of the search warrant should be noted on a 

docket sheet. The return of the warrant and the inventory 

of any property seized should also be recorded by the 

magistrate. Articles 18.21 and 18.27. Any hearing 

had on the propriety of the issuance of the warrant, 

held pursuant to the provisions of Article 18.23, et seq., 

should be noted on the docket sheet together wfth the 

magistrate's decision in this connection. Article 18.29 

requires the magistrate to keep a record of all proceedings 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 the peace. 

- 2074 _ 
Honorable Hollis D. Garmon, Page 7, (M-416) 

The answer to the foregoing question depends on the 

procedure adopted by a particular justice of the peace. 

While justices of the peace 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, do make and retain copies 

of all instruments filed with their office. 

Where a complaint is filed charging an offense that 

is either a felony or a county court misdemeanor, the 

justice of the peace will ordinarily wait until the warrant 

is executed, bail has been set and an examining triz? held, 

if one is requested, before transmittal of the pape:s to 

the appropriate court. 

However, where no arrest is made after a reasonable 

time, the magistrate must transmit the complai:& and 

warrant of arrest (and list of the witnesses) -CD the 

Proper court. Article 17.32. 

Often, a defendant will be arrested and the magistrate 

will set bail but the defendant is unable to make bond 

at the time of his appearance before the magistrate. 

In such case the proceedings, when the examining trial 

has either been held or waived, 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 the peace to 

forward any papers that are not within his possession. 

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Honorable Hollis D. Garmon, Page 8, (M-416) 

Likewise, the confession of the accused is usually 

of no concern to the magistrate except where made during 

the course of an examining trial. Where such a confession 

is made, it should, of course, be forwarded to the proper 

clerk along with the other papers. However, a confession 

made to a peace officer or to a county or district attorney 

does not properly become a part of the magisterial records, 

unless introduced by the state in an examining trial. 

“9. What type, if any, seal is required on the envelope that the Justice of the Peace writes across or places 

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 and where the envelope has its 

own sealing agency or glued 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 the wax wafer. 

"10. If a person 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 State make him serve additional time to comply with 

Court costs, the same as we do in County Court wher.2 a 

fine is imposed and court costs is attached under A?acle ..-. 

2410?" 

Parole from a state penitentiary is a mc:Ltrr for 

determination by the Board of Pardons and ParLies and 

the Governor. While the failure to pay court costs that 

have been assessed against a convicted defendant is a 

factor to be considered by the Board, there is LO way 

that the state or the county can require a defendant to 

serve additional time to compensate for the non-payment 

of costs once parole has been granted. 

"11. Does the Foreman of the Grand Jury have the 

authority to call a Defendant before the Grand Jury -- for 

questioning, p articularly where the Defendant does not 

have an attorney and has not had an attor:?ey appc.i.ntetf 

for him? If the Foreman c;.? call thz Dec',dant, is it 

necessary to appoint an attorney for the Defendant before 

bringing him before the Grand Jury, giving ---I__ him the warning, --.,. 

and questioning such Defendant?" 

-2076" 
. . 

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 of witnesses 

to testify before the grand jury. A defendant or person 

under investigation by the grand jury is not exempt from 

such process and may be required to appear before the 

grand jury. Some district and county attorneys do require 

attendance by a defendant and offer to him the opportunity 

to testify in order to forestall a claim by the defendant 

later that he was not permitted to appear before the grand 

jury. 

Where a defendant is required to appear, a careful 

explanation of his rights and privileges should be made 

by the foreman or by 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 to have 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 of his right 

to terminate the grand jury interrogation at any time 

should he initially decide to testify and later change 

his mind: he should further be warned that any testimony 

that he gives before the grand jury may be used as evidence 

against him in a criminal trial. Should the defendant 

request the services of an attorney and he is indigent, 

one should be appointed for him before any interrogation 

is commenced. 

It should be observed that the foregoing discussion 

does not deal with the power of the grand jury to compel 

a defendant to testify, for it may well be that an accused, 

pursuant to certain statutes authorizing the procedure, 

can be made to testify in grand jury proceedings with 

such compulsion nullifying any later criminal prosecution. 

Rather, our discussion is focused toward the practical 

aspects of requiring a defendant to appear before a grand 

jury. 

-2077- 
. . 

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

"12. Does the District Attorney have authority to issue 

a summons to cause witnesses to be brought before the 

Grand Jury or is that reserved to the Foreman of the Grand 

Jury, the District Clerk and the Court?" 

Your last inquiry is answered by Article 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 or vacation, may 

issue a summons or attachment for any witness 

in the county where they are sitting; which 

summons or attachment may require the witness 

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 

before the grand jury. 

SUMMARY 

Articles 45.13 and 45.14 of the Code of 

Criminal Procedure require that a Justice 

of the Peace keep a docket reflecting all 

criminal matters that come to his attention 

in both his magisterial and judicial capacities. 

All instruments concerning a particular 

criminal matter should be forwarded to the 

clerk of the court having jurisdiction over 

the offense charged, including search warrant affidavits and a tabulation of court 

costs in a magisterial proceeding. All 

forwarded papers are available to the grand 

jury for their use and consideration without 

a court order. 

When a defendant has been granted parole, 

he cannot be required to serve additional 

time to compensate for the non-payment of 

assessed court costs. 

-2078- 
Honorable Hollis D. Garmon, Page 11 (M-416) 

A defendant can be summoned before a 

arand jury; when so summoned he should be 

advised of his 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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