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JIM **MAlTOX Attorney** **General**

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# TheAttorney General ofTexas

**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 recheckcharge/complaint **for** ‘an r ,offense~%hich occnrred ‘with%% his precinct when defendautresides in,Barris County but **not** within his prec:!.nctP ’ (3) rLccept abad 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 and45.22. 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 ajustice

**D. 830** Honorable ,MikeDrincoll - :?age2 (JH-190)

of the peace in Harris Cowty to accept such abad 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 badcheck and provides that such an offense is a Class CMsdewanor. A Class CMisdemeanor 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 >fall cases where the penalty 

### or fine to be woei by lawmaynot be

### morethan for twohundred 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~ SeeMartin v. State, 3858.U.2d 260 (Tax. Grim. App. 1964); Bradley v. saringen. 525 S.W.Zd28Cm (Tex. Civ. App. - Eastland 1975. nowrit); **Attorney** General Opinion D-1026 (1977). TheTexas 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 bevwted 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 thejurisdiction of the justice courts , including the off,mse of immuingbad checks under section 32.41 of thePenal 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. 831Ilonorable MikeDriscoll - Page 3 (Jn-190)

Sec. 1. Nop’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 inwhich **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:hecounty. Sec. 2. **No**constable shall be alloved afee in anymisdemeanor t:risearjsing 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. Anyjustice 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. Thelanguage of article 45.22 indicates that its venue’provisions are mdatory rather than l@zalssive , and requires that a suit on the issuance of abad check bll filed in the urecinct inwhich **the** offense vas colpitted. SeeAllietl Artists Pictuies Corp. v. Transcontinental Theatres, Texas.-&.- 57.1S.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~ofCriminal **Procedure** provides for the change of venue to another county to secure **an** impartial trial onmotion 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). TheTexas statutes donot 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 achsnge of **venue** if he demands



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

**e jury**  trial cod **if it**  **spp~ars that**  animpartial jury and afair 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.

. Webelieve 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 animpartial jury regardless of the punishment **which** maybe 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.sapplicable, article b5.22 fixes mandatory venue for trial in the **jmtice** court in the precinct in which a Class C Misdemeanor is comitted. Webelieve tbat the courts vould find that a defendant who demands ajury trial has aconstitutional 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 ajustice 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. Weanswer the last twoparts 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:Fthe 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 , weexpress no opinion onAUKother potential constitutlonel ismes discussed in 

### yourbrief. SUHMARY Article 45.22 3fthe Codeof 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. 833Hoaornble MikeDriscoll - Piige5 (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 byNnncySutton Assistant **Attorney** General APPROVED: OPINIONCOI4WlTEE Rick Gilpin. Chairman David Brooks Colin C*rl Susan Gnrrison JimMoellinger Nancy Sutton