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

A¶-roPrarn~ "nN.sar. 

Honorable M. D. Emerson 

County Attorney, Lamar County 

Paris, Texas 

Dear sir: Opinion No. O-2349 

Re: Justice Court-Waiver 

of Jurisdiction by 

appearance before 

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 procedure wherein a defendant enter8 a plea before a justice of the peace at 

a place outside the territorial limits of the precinct 

wherein the arrest was perfected. You submit the following question: 

"If the defendant waives the question of 

jurisdiction by his appearance before and plea 

of guilty to a Juatice of the Peace, is such 

plea of guilty so accepted a legal plea of 

guilty?" 

It is provided by statute that justices of the 

peace have jurisdiction in criminal cases where the 

fine to be imposed by 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, 286 S. w.T87, petitioner sought release through a writ of habeas corpus. A complaint 

chargin an offense had been filed in justice precinct 

6, of Travis County, whereas petitioner claimed the 

offense was committed, if at all, in justice precinct 

3. We quote from the opinion of the Court of Criminal 

Appea~ls: 

"We 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. 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 

precinct No. 6 has jurisdiction of the subject 
HOG. M. D. Emerson, page 2 (O-2349) 

matter of the suit. Article 60, 1925 Revision 

C.C.P. 

"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 

unecessary to decide in this case, it would still 

follow that such right would not render the trial 

of the cause in justice urecinct No. 6 void. SUDwe think, correctly stated the rule as follows: 

"'The word "void" can with no :ropriety 

be applied to a thing which appears to be sound, 

aad which while in existence can command and enforce respect, and whose infirmity cannot be made 

maaif est. If a judgmmt rendered without in fact 

bringing the defendants into court cannot be attacked collaterally on 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 a mere 

misconception of some matter of law OP of fact occuring in the exercise of an unquestionable jurisdiction. In either case the judgment can be avoided and made functus officio by some appropriate 

proceedings instituted for that purpose; but, if 

not so avoided, must be respected and enforced.' Dunn 

v. Taylor, 42 Tex. 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 case wherein the resident justice of 

the peace was absent from his precinct and the nearest justice 

of the peace in an adjoining precinct acted for him. Plaintiff 

proceeded to judgment and the defendant appealed, contending 

the visi~ting justice exceeded his authority in going out of his 

precinct Ao 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, outside hia precinct, aad in the 

place of Justice Fitzgerald, abee&, and issued 

the citation while 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 submission to the jurisdiction of the court over his person, and the motion 

to dismiss was therefore properly overruled.***." 

We have been unable to find any further expreasion 

of our courts upon your 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-Second Legislature, 

ch 43, sec. 32, p. 65: 

"The defendant in a criminal prosecution 

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 appearing before a Justice of the Peace and 

entering a plea of guilty, such plea of guilty is legal, 

even though made outside the precinct of arrest. 

Very truly yours 

ATTORNEX GENERAL OF TEXAS 

By e/s/ Benjamin Woodall 

Benjamin Woodall 

Assistant 

BW:RW:vb 

APPROVED MAY 20, 1940 

Gerald C. Mann 

Attorney General of Tcxaa 

Approved 

Opinion 

Committee 

By RUB 

Chairman