. . 

JIM MAlTOX 

Attorney General 

Sucmme Cowl Bulldlno 

P. 0. Box 12545 - 

AUS!h TX. 75711. ?%a 

5121475-2501 

Telex SWS74~1367 

Telecopier 51214750266 

714 Jwkson. Suits 700 

Dallar. TX. 752024506 

21417428844 

4S24 Albsfi. Ave.. suite 180 

El P880, TX. 7SSG52793 

s1m34s4 

ml fexss. sulle 700 

HPUS~D~. TX. 77002.3111 

713mMSe6 

W5 Broadwsy. Suile 312 

Lubbock. TX. 7S401.347’2 

aow-747~5239 

43C4 N. Tenth. Suit0 B 

MeAllen. TX. 7SYmlSa5 

5wS524547 ,- 

200 Mm Plu*. suite 400 

Ssn Anmnlo. TX. 782052797 

512l225-4181 

An Equal OpporWW/ 

*fflrm*tlvo ActIon Employ*r 

The Attorney General of Texas 

August 

Eonorable Hike.Drim:oll 

Eerrie County Atto::uey 

1001 Preston, Suit! 634 

Houston, Texas 7’1002 

Dear Mr. Driscoll: 

You have asked the 

13, 1984 

Opiniw No. m-190 

Re: Venue of criminal proceedings 

in Justice Courts 

folloving questions relating to the venue of 

certain criminal prxeedings in the justice courts in Earris County: 

1. Dues article 4.12 or article 45.22 of the 

Code of *:riminal Procedure control the venue of 

criminal charges filed pursuant to section 32.41 

of the I’mal Code ‘ia the justice courts of Harris 

County, tmd is the applicable article, if any. 

mandatory or directory? 

2. Is it proper for a:justice of the peace in 

Eartie Ccunty to do any of the following: 

, ~.‘! -il)“‘A.ccept a-bad check charge/complaint fdi an 

:, -offense wh%chth: occurred within ‘Barris County but 

not withim his precinct? ’ 

‘.:. ‘.~ - (2) :&wept a’bad recheck charge/complaint for ‘an 

r ,offense~%hich occnrred ‘with%% his precinct when 

defendautresides in, Barris County but not within 

his prec:!.nctP ’ 

(3) rLccept a bad check charge/complaint for an 

offense which occurred within his precinct but 

.defandarr: resides in another county? 

.t 

Your request for an opinion is accompanied by a brief which also 

dfacuases the eonatitutionality of .artlcles 4.12 and 45.22. 

Article 45622 of. the Code of Criminal Procedure determines the 

venue of criminal charge8 filed in the justice courts of Darris County 

for ~the offense of issuing a bad check under sectlon 32.41 of the 

Penal Code, and its provisions are mandatory. Except as provided if a 

justice of the pcwce ie disqualified. it is not proper for a justice 

D. 830 
Honorable ,Mike Drincoll - :?age 2 (JH-190) 

of the peace in Harris Cowty to accept such a bad check case when the 

offense does not occur rdthin his precinct, but it is proper, 

regardless of the residema, of the defendaut. vhm the offense does 

occur within his preclact. 

Section 32.41 of the Penal Code lists the elements that 

constitute the offowe of issuance of a bad check and provides that 

such an offense is a Class C Msdewanor. A Class C Misdemeanor is 

punishable only by a fins not to exceed $200, vhich punishment 

conforms to the constitutional and l tatutory jurisdiction of the 

justice court in this stwe. Article 0, rection 19, of the Texan 

Constitution provides in ptrt that 

Justices of the :Peace shall have jurisdiction in 

criminal matters >f all cases where the penalty or 

fine to be woei by law may not be more than for 

two hundred dollarr . . . . 

Article 4.11 of the Code of Criminal Procedure specifies that justices 

of the peace have jurisdiction in criminal cases where the fine to be 

imposed by law may not exceed $200. Accordingly, the offense of 

issuance of a bad check under eection 32.41 is vithin the subject 

matter jurisdiction of the justice courts. 

Venue does not lisdt or affect the jurisdiction that is 

prescribed by the constitwion and by statute for the justice court. 

“Venue ,” as applied to ,criminal cases. means the place in which 

prosecutions are to begin, uhile “jurisdiction” means the power of the 

court to hear and determiuo the case. The terms are not syoonymotiS~ 

See Martin v. State, 385 8.U.2d 260 (Tax. Grim. App. 1964); Bradley v. 

saringen. 525 S.W.Zd 28Cm (Tex. Civ. App. - Eastland 1975. no writ); 

Attorney General Opinion D-1026 (1977). The Texas Constitution gives 

the legielaturc pouer~to fir.venue and the courts pouer to change 

venue in the manner providedby law. Article III, section 45. of the 

constitution atates that ,~:he “power to change the venue in civil and 

criminal cases shall be vwted in the courts, to be exercised in such 

manner as shall be proviclcd by law; and the Legislature shall pass 

laws for that puipose.” 

We believe that articles 4.12 and 45.22 are merely venue 

requirements for criminal cases within the jurisdiction of the justice 

courts , including the off,mse of immuing bad checks under section 

32.41 of the Penal Code. Article 4.12 establishes justice court venue 

for misdemeanor cases ucrpt to the extent that, in each of the 

several counties in the state which have a population of at least 

225,000. article 45.22 fires venue in the justice courts. Hence 

article 45.22, rather ttun article 4.12. is applicable in Earris 

County. 

E-1026. 

See Bradley v. lpearingen, B; Attorney General opinion 

Article 45.22 prcvides as follows: 

0. 831 
Ilonorable Mike Driscoll - Page 3 (Jn-190) 

Sec. 1. No p’crson shall ever be tried in any 

justice precinct court unless the offense with 

which he was ‘::larged was colPlnitted in such 

prscinct . Provided, however, should there be no 

duly qualified justice precinct court in the 

precinct where llulcb offense was emitted, then 

the defendant ohall be tried in the justice 

precinct next adjacent which ry have a duly 

qualified justice court. And provided further, 

that if the justice of the peace of the precinct 

in which the offense vaa~comitted is disqualified 

for any reason for trying the case, then such 

defendant may t,r, tried in some other justice 

precinct within r:he county. 

Sec. 2. No constable shall be alloved a fee in 

any misdemeanor t:rise arjsing in any precinct other 

than the one for which he has been elected or 

appointed, exccrt through an order duly entered 

upon the mlnut’es of the county commissioners 

court. 

Sec. 3. Any justice of the peace. constable or 

deputy constsblc violating this Act shall be 

punished by a floe of not less than $100 nor more 

than $500. 

Sec. 4. The provisions of this Article shall 

apply only to counties having a population of 

225,000 or over’according to the last preceding 

federal census. 

The language of article 45.22 indicates that its venue’provisions 

are mdatory rather than l@zalssive , and requires that a suit on the 

issuance of a bad check bll filed in the urecinct in which the offense 

vas colpitted. See Allietl Artists Pictuies Corp. v. Transcontinental 

Theatres, Texas.-&.- 57.1 S.U.2d 871, 872 (Tu. Civ. App. - Sastland 

1978, writ diam’d); Attorcay General Opinion E-1026. 

A change of venue us~lly means changing the place of trial from 

one county to another. Chapter 31 of the Code ~of Criminal Procedure 

provides for the change of venue to another county to secure an 

impartial trial on motion of the court or on motion of the defendant 

in either a felony caee or a misdemeanor case punishable by 

confinement. See V.T.C.S, arta. 31.01; 31.03(a). The Texas statutes 

do not provide%r change of venue in cases within the jurisdiction of 

the justice courts. nalu!ly, cases which are not punishable by 

confinement. However, the United States Supreme Court has held that 

an individual has en inhe::unt right to a chsnge of venue if he demands 

D. 832 
Honorable Hike Drlscoll - ?‘lgc 4 (JM-190) 

e jury trial cod if it spp~ars that an impartial jury and a fair trial 

csnnot be obtained In the county. See Irvin v. Dowd. 81 S.Ct. 1639 

(1961). At a time when the! Texas statute8 providing for a change of 

venue were limited to felony caees vith one exception. a federal 

district court held that, under the due process clause of the 14th 

Amendment, It was the dut:r of the Texas judiciary to provide a fair 

trial by an impartial jur:f to a person charged with a misdemeanor 

punlsbable by confinement , even if to do so the court must grant a 

change of venue that wntravenes state statutes. See Hisson V. 

;a$~, 232 P.Supp. 539 0.D. Tex. 1964). aff’d. 364 F.2dl (5th Clr. 

. 

We believe that. if presented with the issue. the courts would 

find that every person accused of a criminal offense has a 

constitutional right to a t.rlal by an impartial jury regardless of the 

punishment which may be ac:N,rded or the serious or petty nature of the 

offense. See also Tex. Coast. art. I, (10. It i# our opinloa that, 

in the counties where it d.s applicable, article b5.22 fixes mandatory 

venue for trial in the jmtice court in the precinct in which a Class 

C Misdemeanor is comitted. We believe tbat the courts vould find 

that a defendant who demands a jury trial has a constitutional right 

to an impartial jury and 1:~ a change of venue if it is necessary for 

that purpose. 

In answer to the first part of your second question, it is not 

proper for a justice of the peace in Harris County to accept a bad 

check case when the offense did not occur within his precinct. Tbe 

mandatory provisions of article 45.22, require that the complaint be 

filed in the precinct where the offense occurred unless, of coarse, 

the justice of the peace j.r. that precinct is disqualified. We answer 

the last two parts of your second question in the affirmative. It is 

proper for 8 justice <If the peace to accept a bad check 

charge/complaint in both of those situations. Tbe defendant’s 

residence ie not significrpt where article 45.22 determines venue. In 

each of the last two situations, the offense occurs vfthin the 

precinct of the justice o:F the peace in question and venue is proper 

in that precinct. 

Tbe answers to the Ilpecific questions which you asked about 

articles 4.12 end 45.22 io not appropriately include enswers to 

unrelated questions and therefore , we express no opinion on AUK other 

potential constitutlonel ismes discussed in your brief. 

SUHMARY 

Article 45.22 3f the Code of Criminal Procedure 

is applicable jn Harris County and provides 

mandatory venue requirements for charges filed in 

the justice cow(:a for issuing a bad check under 

p. 833 
Hoaornble Mike Driscoll - Piige 5 (M-190) 

section 32.41 of the Penal Code. Except *a 

provided if n justice of the peace is 

disqualified, vwue for misdemeanors in the 

justice courts it. Rarris County is limited to the 

precinct lo wbic’n the offense occurs, regardless 

of the residence of the defendsnt. 

vJ I n MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorn?:? General 

Prepared by Nnncy Sutton 

Assistant Attorney General 

APPROVED: 

OPINION COI4WlTEE 

Rick Gilpin. Chairman 

David Brooks 

Colin C*rl 

Susan Gnrrison 

Jim Moellinger 

Nancy Sutton