MARK WHITE 

Attorney General 

.?.“pmma court Building 

P.O. sox 12545 

A”,ti”, TX. 78711 

512/475-2501 

701 conlmu. Suite 200 

O.ll”. TX. 7.5202 

214”.26944 

The Attorney General of Texas 

December 12, 1979 . 

Honorable Maurice S. Pipkin 

Executive Director 

Opinion No. MW-9 8 

State Commission on Judicial Conduct Re: Whether a justice of the 

Supreme Court Building peace may hold court in his own 

Austin, Texas 787l.l precinct and dispose of cases from 

another precinct. 

Honorable James Warren Smith, Jr. 

Prio County Attorney 

P. 0. Box V 

Pearsall, Texas 78081 

. 

Gentlemen: 

Each of you asks questions concerning the jurisdiction and venue of 

justice of the peace courts. The Commission on Judicial Conduct has asked 

whether a justice. may, by exchanging benches, accept and disp6se 6f 

misdemeanor complaints where the offense occurred in a nonadjacent justice 

precinct of the county. Section 4.12 of the Code of Criminal Procedure 

provides the proper venue for the trial of misdemeanor complaints in justice 

court: 

A misdemeanor case to be tried in justice court 

shall be tried in the precinct in which the offense was 

committed, or in which the defendant or any of the 

defendants reside, or, with the written consent of the 

State and each defendant or his attorney, in any other 

precinct within the county; provided that in any 

misdemeanor case in which the offense was 

committed in a precinct where there is no qualified 

justice precinct court, then trial shall be had in the 

next adjacent precinct in the same county which may 

have a duly qualified justice precinct court, or in the 

precinct in which the defendant may reside; provided 

that in any such misdemeanor case, upon disqualification for any reason of all justices of the peace in the 

precinct where the offense was committed, such case 

maybe [sic] tried in the next adjoining precinct in the 

same county, having a duly qualified justice of the 

peace. 

0.303 
1. .II 

Honorable Maurice .S. Pipkin 

Honorable James Warren Smith, Jr. - Page Two (NW-98) 

See also arts. 2377, 2393, 2399, V.T.C.S.; Code Crim. Proc. S 30.07. Proper venue 

thereiore is in the “next adjacent precinct” or jn the precinct of the defendant’s residence. 

Article 2393a, V.T.C.S., provide% 

A justice may hold court for any other justice whose precinct is in 

the same county; and the justices of a county may exchange 

benches whenever they deem it expedient. 

District judges are allowed to exchange benches, under similar language. Tex. Const art 

V, Sll; art 1916, V.T.C.S. This power to exchange benches is a discretionary judicial 

procedure subject to review only upon abuse of discretion. Floyd v. State, 488 S.W.2d 830 

(Tex. Crim. App. 1972). A formal order stating the reasons or docket entry is not 

necessary for judges to exchange benches. 9 Pendleton v. State, 434 S.W.2d 694 (Tex. 

Grim. App. 1968). The justice who is exchanging benches serves as the presiding judge for 

that court and must hold court in the same manner and place as would have the replaced 

judge. Ex parte Lowe% 518 S.W.2d 897 (Tex. Civ. App. .-- Beaumont 1975, no writ). 

Whether the exchange of benches between justices of the peace on a regular and frequent 

basis amounts to an abuse of discretion or neglect of duties is a factual question which 

cannot be resolved in the opinion process 

::The Prio County Attorney has asked whether a justice of the peace may hold his 

court in the better facilities of an adjacent precinct of the county with the consent of all 

parties involved. We are aware of no authority which would permit a justice of the peace 

to hold his court outside his precinct, but the same substantive result can be achieved by 

trying the case in another precinct with the consent of the parties which would waive any 

venue objections. V.T.C.S. art 2300. The justice of the peace who has the inadequate 

facilities may then hear these cases under the exchange of bench procedure. Such a 

resolution avoids the issue of the authority of a justice of the peace holding his court 

outside his precinct. 

SUMMARY 

Justices of the peace may exchange benches and thereby sit in 

another court outside of their precinct whenever expedient 

However, use of such procedure may be subject to a charge of 

abuse of discretion or neglect of duty. 

&vww4Yo~ 

MARK WHITE 

Attorney General of Texas 

JOHN W. PAINTER, JR. 

First Assistant Attorney General 

p. 304 
L G.‘! ‘.’ ;r 

. . 

Honorable Maurice S. Pipkin 

Honorable James Warren Smith, Jr. - Page Three (MN-98) 

TRD L. HARTLEY 

Executive Assistant Attorney Ge&&i ’ .” :! 1-j ! 

Prepared by David B. Brooks 

and C. Robert Heath 

Assistant Attorneys General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

David B. Brooks 

Tom Bullington 

Chuck Campbell 

Bob Gammage 

Swan Garrison 

Rick Gilpin 

William G Reid 

Bruce Youngblood 

. 

p. 305