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
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Honorable Maurice S.Pipkin Executive Director Opinion No. MW-9 8 State Commission onJudicial 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. BoxV Pearsall, Texas 78081 . Gentlemen: Each of you asks questions concerning the jurisdiction and venue of justice of the peace courts. The Commission onJudicial Conduct has asked whether a justice. may, by exchanging benches, accept and disp6se 6f misdemeanor complaints where the offense occurred ina 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 injustice court: A misdemeanor case to be tried in justice court

shall be tried inthe precinct inwhichthe 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 orhis 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 suchmisdemeanor case, upondisqualification for any reason ofalljustices ofthe peace in the precinct where the offense was committed, such case maybe [sic] tried inthe next adjoining precinct in the same county, having a duly qualified justice of the peace.

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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. S30.07. Proper venue thereiore is inthe “next adjacent precinct” or jnthe precinct ofthe defendant’s residence. Article 2393a, V.T.C.S., provide%

Ajustice 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 uponabuse of discretion. Floyd v. State, 488S.W.2d830 (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.2d694(Tex. Grim. App. 1968). Thejustice whois exchanging benches serves as the presiding judge for that court and must hold court in the same manner and place as wouldhave the replaced judge. Ex parte Lowe% 518S.W.2d 897 (Tex. Civ. App. .-- Beaumont 1975, no writ). Whether the exchange ofbenches 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 opinionprocess ::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. Weare aware of no authority which wouldpermit ajustice ofthe 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 wouldwaive 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 hisprecinct. 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 ofdiscretion or neglect ofduty.



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MARK WHITE Attorney General ofTexas JOHN W.PAINTER, JR. First Assistant Attorney General

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

TRDL. HARTLEY Executive Assistant Attorney Ge&&i ’

.” :! 1-j! Prepared by David B.Brooks and C. Robert Heath Assistant Attorneys General APPROVED: OPINIONCOMMITTEE C. Robert Heath, Chairman David B.Brooks Tom Bullington Chuck Campbell BobGammage Swan Garrison Rick Gilpin William GReid Bruce Youngblood .

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