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. We quote from your request as follows: 

“Would you please advise me on the following : 

‘Constable of ?recinct #8 catches dice shooters in Precinct $4 and files complaintagainst them 

in Justice precinct 21 where they plead guilt and 

pay fine. Justice of the Peace of ?recinct ii de- ;.< 

mands the Justice fees in the cases. Should he rece ive them. 

“What is then present law on where a Constable 

can f lie 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 him directed and delivered by any lawful officer, attend upon all justice courts held 

In his precinct and perform all such other duties 

as may be required of him by law. I’ 

“Art. 6889. Every constable may execute any 

process, civil or criminal, throughout his county 

and elsewhere, as may be provided for in the Code 

of Criminal Procedure, or other law.” 

The constable 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 peace 
Hon. $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: 

UWhenever It 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; and he shall be authorized, by any 

search warrant that is Issued by virtue of this laid, 

to enter any house, room or place to be searched, 

using such force as may be necessary to accomplish 

such purpose .I’ 

Article 633, Vernon’s Annotated Texas Penal. Code 9 provides for the issuance of a search warrant and arrest warrant 

for gaming violations. 

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

that such a warrant: 

“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; and any peace officer to whom 

said warrant is directed 

d 

or into whose hands the 

same has been transferre shall be authorized to 

execute the same in any c&nty in the state.” 

The case 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 a warrant outside the county, and that a sheriff 

and deputy making an arrest and searching an automobile outside 

the county without a warrant stand in the same relation to search 

as private citizens. 

Opinion No. O-1240 of this department holds that a constable has the authority to execute a warrant of arrest not only 

in every precinct within his own county, but as well in any 

county in the State, and is entitled to the fees and mileage provided by law therefor. 

We quote 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 when acting under a lawful warrant, 

since they are peace officers." (Citing the case 

of Newburn v. Durham, 31 S.W. 1951 

This department has repeatedly held that a constable 

has authority to make arrests without warrant (in the instances 

provided by law) anywhere In his county either in or outside 

his own precinct. See the following opinions: 

Opinion dated May 21, 1931, wrltten by Hon. 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 A ttorney 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'e quote from Opinion No. 0-3969 of this department 

as follows: 

@'You are respectfully advised that it is the 

opinion of this department that a constable may lawfully make an arrest in a precinct other than his 

own in his county without a warrant when he would 

be authorized by law to make the arrest without warrant in his own precinct; and that while it is his 

primary duty under Article 37, V.A.T.C.C.P. to preserve the peace within his own precinct, st i 11 his 

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 

may execute warrants of arrest anywhere within the 

State." 
Hon. Jean Day, page 4 

* 7~ 

Me quote from the opinion of the Te:ias Court of Grimlnal Appeals In the case of Ex parte Von Koennerlts, 286 3.W. 

987, as follows: 

“This Is a dual actloll, in whlzh the applicant 

seeks the writ of habeas corpus releasing him from 

-rre st and also seeks a writ 01. prohibition against 

J. C. &rch, justice of the peace of precinct No. 6 

of Travis county, Tex. He asks that we Issue a writ 

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 

him in the justice court over which tha said Burch 

pre sides. He attaches a copy of the complaint under which he is held, and this complaint alleges 

that on the 15th day of January, 1920, the appli.cant, 

in Travis county, Tex., did unla&ully end iJillfully 

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., an lncsyporated city, 

at a greater rate of speed than 25 mills per hour, 

etc. 

“It is appellant’s contentton that the justice 

of the peace in precinct NC. 6 is withot? jurisdiction to try said case, In view of the :‘i:ct, as appeilant contends, that the offense was con,iiltted, if at 

all, In precinct No. 3 in Travis county. :1e do not 

agree with applicant’s contention that the alleged 

anticipated trial of the applicant before the justice 

court of precinct No. 6 would 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. 6 has 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. 6 void. Suppose tha right to be tried 

in the urecinct where the offense was committed was 

undisputed, yet for some reason applicant should not 

see fit to assert this right and should plead guilty 

in a justice court situated in a precinct different 

from the one ,in which the offense was committed; could 

it be contended that a valid judgment could not be 

rendered ag.ainst him under these conditions? ivi think 

not. The Court cf Civil Appeals in this state haz, ~5 

think, correctly stated ;he rule as follotis: 
1 Hon. 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 command and enforce 

:, 

respect, and whose. Infirmity. cannot be made .manifest. If a judgment rendered without in fact. 

bringing the defendants into court cannot be attacked collaterally~on this ground unless the want of 

authority over them appears on the record, it is no 

more void than if it were founded upon a mere misconception of some matter of law or of fact occurring in the exercise of an unquestionable jurisdic-~ 

tion. In either case the judgment can be avoided 

and made fun&&s officio by some appropriate proceeding instituted for that purpose; but If not so 

avoided, must be respected and enforced. 1 Dunnv. 

Taylor, 42 Tex.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 remedy in some other 

manner. The ordinary mode of 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 a writ of error, a certiorari, 

or as an appeal.’ Ex parts ~Doland 11 Tex. App. 159; 

Ex parte McKay 82 Tex.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, 

au horlties. 

and?many. 

_, .~ 

“The matter in controversy being one in which 

the justice of the peace has jurisdiction of the 

subject-matter involved, owe will 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 Ex parte Windsor (Tex.Cr.App.)7 r3 S.W. 

90: 

“‘We will not assume that the court below will” 

not properly administer the 

mine questions presented to 

manner.’ _: 

law, and will not.-deterit, in a legal and proper 
Don. 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.1 be paid by the county to 

the County Judge, or Judge of the Court at Law 

and Two Dollars and fifty cents shall be paid gy 

the county to the Justice of the Peace, for each 

criminal action tried and finally 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 a regular 

term thereof, a written 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. The Commissioners’ 

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 amount so 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 by the 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, and the State 

of Texas,was represented and that In his judgment 

there was sufficient evlAence in said cause to demand 8 trial. of same. (As amended Acts 1929 41st 

Leg. 

1st 6. 

p. 239 ch. 104 1 1. Acts 1929, 41st tee., 

S., p! 155, ch! 55,’ i 1.)” 

Article 1011, Vernon’s Annotated Texas Code of Criminal procedure, reads as follows: 

“No item of costs shall be taxed for a purported service which was not performed or for a service 

for which no fee is expressly provided by law.” 

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 had jurisdiction. The Justice of the Peace of 

?recinct No. 1 who accepted 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 cases 

c 

such question Is rather broad. As 

pointed out above, under he facts given in your letter, the 

convictions in justice precinct No. 1 were not void. The defendants pleaded guilty, paid their fines and did 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 Ex parte Von Koennerits 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 A rticle V, Section 15, Constitution of Texas.) 

In this connection we wish to call to your attention 

the provisions of House Bill 342 of the 48th Legislature of 

Texas, effective August 10, 1943. We quote from Volume 5, Vernon’s 1943 Texas Session Law Service, 48th Legislature, Regular 

Session, pages 424-425, as follows: 

“Be it enacted by the Legislature of the State of 

Texas: 

“Section 1. No person 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 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 may be tried in the 

next adjoining precinct in the same county, 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 State 
Hon. Jean Day, page 8 

and each defendant or his attorney, and flled in 

the Justice Court in which such alsdemeanor case 

is pending the Justice of the Peace before whom 

such case 1 s pending may 

transfer such cause to t h 

In KS discretion, 

e Justice Court of any 

other precinct in the same county named in such 

agreement; provided that In any m!sdemeanor case 

in the Justice Court, In which two (2) or more defendants are to be tried jointly, such case may be 

tried in a Justice Court of the precinct where the 

offense was committed, or where any of the defendants reside. 

“Sec. 1-A. No constable shall be allowed a 

fee in any misdemeanor case arising In any precinct 

other than the one for which he has been elected or 

appointed, except through an order duly entered upon 

the Minutes of the County Commissioners Court. 

“Sec. 1-B. 

Deputy Constable, 

Any Justice of the Peace, Constable, 

Sheriff or Deputy sheriff either 

elected or appointed, vlo 1. atlng any provision of 

this Act shall be punished by fine of not less than 

Gne Hundred Dollars ($100) nor more than Five Hundred Dollars ($500) .aod shall be subject to be removed from office by action brought in District Court 

for that purpose. 

“Sec. 2. All laws and parts of laws in conflict 

herewith are hereby repealed to the extent of such 

conflict. 

“Sec. 3. The fact that many persons are dally 

being prosecuted for misdemeanors in Justice Courts 

at considerable distances from their homes and from 

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 a viva 

vote vote. 

“Approved May 6, 1943. 
. ., - 

Hon. Jean Day, page 9 

‘%ffective 90 days after May 11, 1943, date 

of adjournment .‘I 

When House Bill No. 342, 

on August 10, 1943 it will control 

supra becomes effective 

lnso i ar as the filing of 

misdemeanor compla&ts In ~justlce courts are concerned. 

Trusting that this satisfactorily answers your lnqulries, we ape 

Very truly yours 

ATTORNZY GHNFRAL OF TEXAS 

By /s/ Wm. J. Fanning 

Wm. J. Fanning, Assistant 

APPROVED JIJL 1, 1943 

/s/ ‘Jim. J. Fanning 

(Acting) ATTCRNZY GENERAT. OF TEXAS 

APPROVZD: OPINION COMMITTZ 

BY: Bii, CHAIRMAN 

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