Gerald C.'.Masln L%WWI-IN H. '&CXAf3

A¶-roPrarn~

"nN.sar. Honorable M. D. Emerson County Attorney,Lamar County Paris, Texas
Dear sir: OpinionNo. O-2349 Re: Justice Court-Waiver of Jurisdictionby appearancebefore justice of peace for plea of guilty outside precinct of arreat. This is to acknow~ledge your request for our opinion as to the legality of the procedurewherein a defendant enter8 a plea before a justiceof the peace at a place outside the territorial limits of the precinct wherein the arrest was perfected. You submit the following question:

"If the defendantwaives the question of jurisdictionby his appearancebefore and plea of guilty to a Juatice of the Peace, is such plea of guilty so accepted a legal plea of guilty?"

It is providedby statute that justices of the peacehave jurisdiction in criminal caseswhere the fine to be imposedby law may not exceed two hundred dollara. (Art.60,C.C.P.)

In the case of Ex parte Van Kocnneritz, 105 Tex. Cr. R. 

### 135, 286S. 

### w.T87, petitioner sought release through a writ of habeas corpus. A complaint chargin an offensehad been filed in justiceprecinct 

### 6, of Travis County,whereas petitioner claimed the offensewas committed, if at all, in justiceprecinct 

### 3. We quote from the opinion of the Court of Criminal Appea~ls:

"We do not agreewith applicant's contention that the alleged anticipated trial of the applicantbefore the justice court of precinctNo. 

### 6 would be a mere nullity. Hi8 action in the event of a trial, in OUP judgment, would not be void. Under the plain terms of the statute itself,the justice of precinctNo. 

### 6has jurisdictionof the subjectHOG. M. D. Emerson, 

### page 2 

### (O-2349)

matter of the suit. Article 

### 60,1925Revision C.C.P.
"If it be conceded that applicantwould have the right uponpropermotion to have the case transferred to the justiceprecinct inwhich the alleged offense occurred,which question it is unecessaryto decide in this case, it would still follow that such right would not render the trial of the cause in justiceurecinctNo. 

### 6 void. **SUD**

we think, correctly stated the rule as follows:

"'The word "void" canwith no :ropriety be applied to a thing which appears to be sound, aad which while in existence can commandand enforce respect, and whose infirmity cannotbe made maaifest. If a judgmmt renderedwithout in fact bringing the defendants into court cannotbe attacked collaterallyon this ground unless the want of authority over them appears in the record, it is no more void than if it we~e founded upon amere misconception of somematter of law OP of fact occuring in the exercise of an unquestionable jurisdiction. In either case the judgment can be avoided andmade functus officioby some appropriate proceedings institutedfor that purpose;but, if not so avoided,must be respected and enforced.'Dunn v. Taylor, 

### 42Tex. Civ. App. 

### 241,94 S.W. 

### 347.

"The anticipated action of the justice of the peace of precinct No. 

### 6 being in no event more than voidableI applicant is sot entitled to the relief sought.' (Bnphasis ours)

The case of Stewart v. Smallwood, (Tcx.Civ. App.) 102 S. W. 159 is a civil casewherein the resident justice of the peace was absent fromhis precinct and the nearest justice of the peace in an adjoiningprecinct acted for him. Plaintiff proceeded to judgmentand the defendant appealed, contending the visi~ting

justice exceededhis authority in going out of his precinctAo act for the absent justice. The Court of Civil Appeala affirmed the case saying:Hon. M. D. Emerson, page 

### 3 (o-2349)

"The fact that Justice Self attempted to act at Boeham, outsidehia precinct, aad in the place of Justice Fitzgerald, abee&, and issued the citationwhile so acting, doea aot necessarily require a dismissal of the suit. This irregularity only affected the quo&Ion of jurisdiction over the person of defendant, and could be waived by him. *** These facts ahow a voluntary appearance by defendant and his submissionto the jurisdiction of the court overhis person, and the motion to dismiss was therefore properly overruled.***."

We have been unable to find any further expreasion of our courts uponyour question aa presented. We do wish to direct your attention to the provisions of Article 11, C.C.P. as amended by the Acts of the Forty-SecondLegislature, ch 

### 43, sec. 

### 32,p. 

### 65:

"The defendant in a criminalprosecution for any offensk,may waive any right secured him by law except the rQht of a trial by a Jury in a felony cane when he enters a plea of not guilty."

You are therefore advised that it is our opinion your question ahould be answered in the affirmative; that where a defendant waives the question of jurisdiction by appearingbefore a Justice of the Peace and entering a plea of guilty, such plea of guilty is legal, even thoughmade outside the precinct of arrest.

Very truly yours
ATTORNEX GENERAL OF TEXAS By e/s/ BenjaminWoodall

BenjaminWoodall Assistant

BW:RW:vb

APPROVEDMAY 20, 1940
Gerald C. Mann Attorney General of Tcxaa Approved Opinion Committee By RUB Chairman