Hon. Jean Day Opinion No. O-,+11

County Attorney Re: Filing of criminal cases in Henderson County various justice precincts of county Athens, Texas by constable, and related matters. Dear Sir: Your request for opinion has been received and carefully considered by this department. Wequote from your request as follows:

“Would you please advise meon the following:

‘Constable of ?recinct #8 catches dice shooters in Precinct $4 and files complaintagainst them in Justice precinct 21where they plead guilt and pay fine. Justice of the Peace of ?recinct ii de- ;.< mandsthe Justice fees in the cases. Should he receive them.

“Whatis thenpresent law on where a Constable can flie his cases.” Articles 6885 and 6889, Vernon’s Annotated Texas Civil Statutes, provide:

“Art. 6885. Each constable shall execute and return according to law all process, warrants and precepts to himdirected anddelivered by any lawful officer, attend upon all justice courts held In his precinct andperform all such other duties as maybe required of himby law. I’

“Art. 6889. Every constable mayexecute any process, civil or criminal, throughout his county andelsewhere, as maybe provided for in the Code of Criminal Procedure, or other law.” Theconstable is a peace officer. See Article 36, Vernon’s Annotated Texas Code of Criminal Procedure.

Article 37 Vernon’s Annotated Texas Code of Crlminal Procedure, provides that “It is the duty of every peaceHon. $ean Day, page 2

officer to preserve the peace within his jurisdiction.”

“Article 632, Vernon’s Annotated Texas ?enal Code, referring to violations of the gaming laws, reads as follows:

UWheneverIt comes to the knowledge of any sheriff, or other peace officer, by affidavit of a reputable citizen, or otherwise, that any provision of the preceding articles of this chapter is being violated, such officer shall immediately avail himself of all lawful means to suppress such violation; andhe shall be authorized, by any search warrant that is Issued by virtue of this laid, to enter anyhouse, room or place to be searched, using such force as maybe necessary to accomplish such purpose .I’ Article 633, Vernon’s Annotated Texas Penal. Code9provides for the issuance of a search warrant andarrest warrant for gaming violations.

Article 223, Vernon’s Annotated Texas Code of Criminal Procedure, relates to a “Warrant of arrest” and provides that such awarrant:

“Issued by any county or district clerk, or by any magistrate (except county commissioners or commissioners court, mayors or recorders of an incorporated city or town), shall extend to any part of the state; andany peace officer to whom said warrant is directed d or into whose hands the samehas been transferre shall be authorized to execute the samein any c&nty in the state.” Thecase of Henson v. State, 49 s.W. (2d) 4630 holds that Article 223, V.A.T.C.C.P., authorizing the sheriff to serve warrants outside his county does not extend his authority to arrest without awarrant outside the county, andthat a sheriff and deputy makinganarrest and searching anautomobile outside the county without awarrant stand in the samerelation to search as private citizens.

Opinion No. O-1240 of this department holds that a constable has the authority to execute awarrant of arrest not only in every precinct within his owncounty, but as well in any county in the State, and is entitled to the fees and mileage provided by law therefor.

Wequote from 38 Tex. Jur., ‘p. 434:Hon. Jean Day, page 3

"The power of arrest possessed by a constable and a city marshal1 also extends to the whole county, and beyond whenacting under a lawful warrant, since they are peace officers." (Citing the case of Newburnv. Durham,31 S.W. 1951 This department has repeatedly held that a constable has authority to makearrests without warrant (in the instances provided by law) anywhere In his county either in or outside his ownprecinct. See the following opinions:

Opinion dated May21, 1931, wrltten byHon. E. F. Johnson, Assistant Attorney General, addressed to Hon. H. G. Bennett, County Attorney, Dumas,Texas.

Opinion dated October 13, 1938, written by Hon. R. E. Gray, Assistant Attorney General, addressed to Sheriff Tom Abel, Lubbock, Texas.

Opinion No. o-1565 of this department, dated November 24, 1939.
1, 1941. Opinion No. 0-3969 of this department, dated October

k'equote from Opinion No. 0-3969 of this department as follows: @'Youare respectfully advised that it is the opinion of this department that a constable maylawfully makean arrest in a precinct other than his ownin his county without awarrant whenhe would be authorized bylaw to makethe arrest without warrant in his ownprecinct; and that while it is his primary duty under Article 37, V.A.T.C.C.P. to preserve the peace within his ownprecinct, st 11 his i jurisdiction is co-extensive with the limits of the county. It also follows that the constable would have authority to execute warrants of arrest anywhere In his county. "It Is also our opinion that the constable would have authority to file complaints upon the arrests described in your letter in the justice court of the precinct where the offenses were COW mitted. "It is our further opinion that the c~onstable mayexecute warrants of arrest anywhere within the State."Hon. Jean Day, page 4 * 7~
Mequote from the opinion of the Te:ias Court of Grimlnal Appeals In the case 

### of Exparte VonKoennerlts, 286 

### 3.W. 987, as follows:

“This Is a dual actloll, in whlzh the applicant seeks the writ of habeas corpus releasing himfrom -rre st andalso seeks awrit 01.prohibition against J. C. &rch, justice of the peace of precinct No. 6 of Travis county, Tex. Heasks that we Issue awrit of prohibition prohibiting the said J. C. &rch, ju:.tice of the peace as aforesaid from trying him on a certain complaint which has been filed against himin the justice court over which tha said Burch presides. Heattaches a copy of the complaint under which he is held, andthis complaint alleges that on the 15th day of January, 1920, the appli.cant, in Travis county, Tex., did unla&ully endiJillfully drive and operate a certain motor vehicle along ‘:~nd upon a certr;iin public highway, to wit, ::long and upon 5outh Congress avenue, a street within the corporate limits of Austin, TeX., anlncsyporated city, at a greater rate of speed than 25mills per hour, etc.

“It is appellant’s contentton that the justice of the peace in precinct NC. 6is withot? jurisdiction to try said case, In view of the :‘i:ct, as appeilant contends, that the offense wascon,iiltted, if at all, In precinct No. 3 in Travis county. :1edo not agree with applicant’s contention that the alleged anticipated trial of the applicant before the justice court of precinct No. 6would be a mere nullity. His action in the event of a trial, in our judgment, would not be void. Under the plain terms of the statute itself, the justice of precinct No. 6has jurisdiction of the subject-maeter of the suit. Article 60, 1925 Revision CL.?.

“If it be conceded that applicant would have the right upon proper motion to have the case transferred to the justice precinct in which the alleged offense occurred, which question it is unnecessary to dacide in this case, it would still follow that such right would not render the trial of the cause in justice precinct No. 6void. Suppose tha right to be tried in the urecinct where the offense was committed was undisputed, yet for somereason applicant should not see fit to assert this right andshould plead guilty in ajustice court situated in aprecinct different from the one ,inwhich the offense was committed; could it be contended that avalid judgment could not be rendered ag.ainst him under these conditions? ivi think not. TheCourt cf Civil Appeals in this state haz, ~5 think, correctly stated ;he rule as follotis:1Hon. Jean Day, page 5

“‘The word “void!’ can with AO propriety be applied to a thing which appears to be sound, and which while in existence can commandandenforce :, respect, andwhose. Infirmity. cannot be made.manifest. If ajudgment rendered without in fact. bringing the defendants into court cannot be attacked collaterally~on this ground unless the want of authority over themappears on the record, it is no morevoid than if it were founded upon amere misconception of somematter of law or of fact occurring in the exercise of an unquestionable jurisdic-~ tion. In either case the judgment can be avoided and madefun&&s officio by someappropriate proceeding instituted for that purpose; but If not so avoided, must be respected and enforced. 1 Dunnv. Taylor, 42Tex.Clv.App.~ 241, 94 S.;.;‘

. 347.

“The anticipated action of the justice of the peace of precinct No. 6 being in no event more than voidable, applicant is not entitled~to the relief sought.

“(The doctrine is well settled, in this state at least, that if the proceeding under which a.person is held in custody and restrained of his liberty is merely voidable, he cannot be released on habeas corpus, but must seek his remedyin some other manner. The ordinary modeof seeking redress against a voidable judgment in a criminal proceeding would be by appeal. The,wrlt of habeas corpus was never designed to operate as awrit of error, a certiorari, or as an appeal.’ Exparts ~Doland 11 Tex. App. 159; Exparte McKay 82Tex.Cr.Ri 221 199 S.Y. 6370 Ex part0 Japan, 38 Tex.Cr.R. 482 other cases ‘cited in these t 38 S.W. 43, auhorlties. and?many.

_, .~

“The matter in controversy being one in which the justice of the peace has jurisdiction of the subject-matter involved, owewill notdecide ,questions of practice in an action of this character that, Mayo arise on the trial of the case. As stated b Judge Henderson in Exparte Windsor (Tex.Cr.App.)7 r3S.W. 90:

“‘We will not assume that the court below will” not properly administer the mine questions presented to manner.’ _: law, andwill not.-deterit, in alegal and properDon. Jean BY, page 6

“.vor the reasons above stated the writ of hapu;,‘d;trpus and the writ of prohfbltlon are both

Article 1052, Vernon’s Annotated Texas Code of Criminal Procedure, re.ads as follows:

“Three Dollars lihal.1be paid bythe county to the County Judge, or Judge of the Court at Law and TwoDollars and fifty cents shall bepaid gy the county to the Justice of the Peace, for each criminal action tried andfinally disposed of before him. rovided, however that in all counties having a population of 20,OOb or less, the Justice of the Peace shall 

### receive a trial fee of Three Dollars. :juch Judge or Justice shall present to the Commissioners’ Court of MS county at aregular term thereof, awritten account specifying each criminal action in which he claims such fee, certlfied by such Judge or Justice to be correct, and fllsd with the County Clerk. TheCommissioners’ Court shall approve such account for such amount as they find to be correct and order a draft to be issued upon the County sreasurer in favor of such Judge or Justice for the amountso approved. i‘rovided the Commissioners~ Court shall not pay any account or trial fees in any case tried and in which an acquittal is had unless the State of Texas was represented in the trial of said cause bythe COW+ ty Attorney or his assistant

d t Criminal District Attorney or s assistant, and he certificate of said Attorney is attached to said account certifying to the fact that said cause was tried, andthe State of Texas,was represented andthat In his judgment there was sufficient evlAence in said cause to demand8 trial. 

### of same. (As amendedActs 1929 41st Leg. 1st 6.p. 239 ch. 104 11. Acts 1929, 41st tee.,

S., p! 155, ch! 55,’ i 1.)” Article 1011, Vernon’s Annotated Texas Code of Criminal procedure, reads as follows:

“Noitem of costs shall be taxed for a purported service which was not performed or for a service for which no fee is expressly provided bylaw.” Under the facts stated the dice shooters pleaded guilty In Justice Precinct No. 1 end paid their fines. Under Ex part0 Von Koenneritz above cited such judgments are not void for such. -

.Hon. Jean Day, page 7

justice court hadjurisdiction. The Justice of the Peace of ?recinct No. 1whoaccepted the pleas of guilt is entitled to the fees provided by Article 1052, V.A.C.C.P., supra.

The Justice of the Peace of ?recinct No. 4~not having tried the cases, is not entitled to any fees whatever.

With respect to your question as to where the constable can file his casesc such question Is rather broad. As pointed out above, under he facts given in your letter, the convictions in justice precinct No. 1were not void. The defendants pleaded guilty, paid their fines anddid not file motions to transfer their cases to justice precinct No. 4. As to whether such motions to transfer would have been good If made is a question raised in the Exparte VonKoennerits case but not decided in such case. The constable also could have filed the gaming cases directly in the county court as that court had concurrent jurisdiction with the justice court of said offenses. (See Article V, Section 15, Constitution of Texas.)

In this connection wewish to call to your attention the provisions of HouseBill 342 of the 48th Legislature of Texas, effective August 10, 1943. Wequote from Volume 5, Vernon’s 1943 Texas Session LawService, 48th Legislature, Regular Session, pages 424-425, as follows:

“Be it enacted by the Legislature of the State of Texas:

“Section 1. Noperson shall be tried In any misdemeanor case in any Justice Precinct Court except in the precinct in which the offense was committed, or in which the defendant resides; provided that in anymisdemeanor 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 samecounty which mayhave a duly qualified Justice Precinct Court, or in the precinct in which the defendant mayreside; 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 tried in the next adjoining precinct in the samecounty, having a duly qualified Justice of the Peace; provided that, upon agreement between the attorney representing the State and each defendant or his attorney, which said agreement shall be reduced to writing, signed by said attorney representing the StateHon. Jean Day, page 8

and each defendant or his attorney, andflled in the Justice Court in which such alsdemeanor case is pending the Justice of the Peace before whom such case 1s pending may transfer such cause to th In KS discretion, e Justice Court of any other precinct in the samecounty namedin such agreement; provided that In any m!sdemeanor case in the Justice Court, In which two (2) or moredefendants are to be tried jointly, such case maybe tried in a Justice Court of the precinct where the offense was committed, or where any of the defendants reside.

“Sec. 1-A. Noconstable shall be allowed a fee in any misdemeanor case arising In anyprecinct other than the one for which he has been elected or appointed, except through anorder duly entered upon the Minutes of the County Commissioners Court.

“Sec. 1-B. Deputy Constable, AnyJustice of the Peace, Constable, Sheriff or Deputy sheriff either elected or appointed, vlo1. atlng any provision of this Act shall be punished by fine of not less than GneHundredDollars ($100) nor more than Five Hundred Dollars ($500) .aod shall be subject to be removedfrom office by action brought in District Court for that purpose.

“Sec. 2. All laws andparts of laws in conflict herewith are hereby repealed to the extent of such conflict.

“Sec. 3. The fact that manypersons are dally being prosecuted for misdemeanors in Justice Courts at considerable distances from their homesandfrom the precincts in which the offenses were committed,

. for the purpose of inducing such persons to plead guilty, creates an emergency and awlmperative public necessity that the Constitutional Rule requiring bills to be read on three several days ineach House be suspended this Act 1 and said Rule is hereby suspended, and

sha 1 take effect and be In force from and after its passage, and it is so enacted.

“Passed the House, April 7 19438 Yeas 125, Nays 18; passed the Senate, Aprfl 29, 1943, by aviva vote vote.

“Approved May6, 1943.. ., -

Hon. Jean Day, page 9

‘%ffective 90 days after May11, 1943, date of adjournment

.‘I WhenHouse Bill No. 342, on August 10, 1943 it will control supra becomes effective lnso ar as the filing of i misdemeanor compla&ts In~justlce courts are concerned.

Trusting that this satisfactorily answers your lnqulries, we ape Very truly yours ATTORNZY

GHNFRAL

OFTEXAS By/s/ Wm.J. Fanning Wm.J. Fanning, Assistant APPROVED

JIJL1, 1943 /s/ ‘Jim.J. Fanning (Acting) ATTCRNZY GENERAT.

OFTEXAS APPROVZD:

OPINIONCOMMITTZ BY: Bii, CHAIRMAN WJF:db:wb