# TWEAYTORNEY GENERAL OF TEXAS
AUSTIN. 

### Tms 78711

March 18. 1974
The Honorable V. Murray Jordan District Attorney 198th Judicial District 107 East Main Street Brady, Texas 76825 Opinion No. H- 262 Re: Trial ofmarihuana possession offenses alleged to have been committed before the effective date ofthe Texas Controlled Dear Mr. Jordan: Substances Act. You have asked whether the county court may try a case involving the offense ofpossession ofless than four ounces ofmarihuana when the alleged offense occurred prior toAugust 27, 1973, the effective date ofthe new Texas Controlled Substances Act. Formerly, possession ofany amount ofmarihuana was a felony. Acts 1937, 45th Leg., ch. 169, p. 333 (formerly, Vernon’s Texas Penal Code, Art. 725b). From and after August’27, 1973, possession of four ounces or less ofmarihuana is a misdemeanor. Texas Controlled Substances Act [hereinafter referred to as the Act], Vernon’s Texas Civil Statutes, Article 4476-15, Sec. 4.05. Offenses committed before August 27, 1973, buttried after that date are controlled by Sec. 6.01 of the Act which provides inpart:

“(a) Except as provided inSubsections (b) and (c) of this section, this Act applies only to offenses committed onand after its effective date, and a criminal action for an offense committed before this Act’s effective date is governed by the law existing before the effective date, which law is continued in effect for this purpose, as ifthis Act were notin force. For purposes of this section, an offense is committed on or after the effective date ofthis Act if any element ofthe offense occurs on or after the effective date.

,I

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p. 1227The Honorable V. Murray Jordan, page 2 (H-262)

“(c) In a criminal action pending, on appeal, or commenced on or after the effective date ofthis Act, for an offense committed before the effective date, the defendant, ifadjudged guilty. shall be assessed punishment under this Act ifhe so elects bywritten motion filed with the trial court requesting that the,court sentence him under the provisions ofthis Act. I’ Although Sec. 6.01(c) has been declared unconstitutional insofar as it applies to actions inwhich a conviction was being appealed on or after August 27, 1973, the provisions ofthe section relating to actions awaiting trial onthe effective date ofthe Act were not affected, **Ek parte**  Giles, 502 S.W. 2d 774 (Tex. Crim. App. 1973). Thus. pre-August 27, offenses are to be tried under the old felony statute, butthe potential punishment may be.of either ,felony or misdemeanor status, at the option ofthe defendant. Ifths quantity involved is four ounces or less, and ifthe defendant elects to be sentenced under the provisions ofthe new Texas Controlled Substances Act, any conviction necessarily is amisdemeanor conviction. Jones v. State, 502 SW. 2d 771 (Tex. Crim.App.: 1973). The county courts have original jurisdiction of,misdemeanors inwhich the potential punishment exceeds a fine oftwo hundred dollars. Vernon’s Texas Code of Criminal Procedure, Article 4.07. District courts have original jurisdiction in felony cases. Texas Constitution, Article 5, Sec. 8; Vernon’s Texas Code of Criminal Procedure, Article 4. 05. A marihuanapossession offense alleged tohave occurred prior to the effective date ofthe Texas Controlled Substances Act must be treated as a felony unless anduntil the defendant elects to be sentenced under the provisions ofthe Act. Although the Court of Criminal Appeals has notyet indicated whether the jurisdiction ofthe district court is always exclusive in pre-August 27marihuana possession cases, ithas held that the district court retains jurisdiction even when amotion to be sentenced under the new Act has been filed prior to trial. Jones v. State, supra.

p. 1228The Honorable V. Murray Jordan, page 3 (H-262)

Since, the district court is the court inwhich the motion must be filed, and as Sec. 6.01(c) requires the motion to be filed in the trial court, we believe that the Act contemplates trial ofpre-August 27 offenses in the district court. Another factor leading to the conclusion that the district court is the proper court inwhich to prosecute these cases, is the inability ofthe county court to enter a felony conviction. There is a possibility that the defendant will not elect to proceed under the new Act or ifhe has filed an election to so proceed, there is apossibility that his motion may be withdrawn. Ifa felony conviction must be entered, it is necessary that the case be inthe district court. Although we cannot say categorically that amisdemeanor conviction for apre-August 27 marihuana possession offense entered by a county court would be invalid in all cases, it is our opinion that prudence and the language ofthe statute indicate that these cases be tried in the district court. SUMMARY

Trial ofmarihuana possession offenses alleged tohave been committed prior to August 27, 1973, should be in the district court. Very truly yours,

Attorney General ofTexas

DAVID M. KENDALL, Chairman Opinion Committee

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