Mr. Pat D.Westbrook

Executive Director Texas Commission for P. 0.Box 12866 August 24, 1989

opinion NO. JM-1089
theBlind Re: Enforcement of the support dog lawsunder chapter Austin, Texas 78711 121of theHuman Resources Code (RQ-1749)

DearMr.Westbrook:

You refer to the provisions of sections 121.003 and 121.004(a) of theHuman Resources Code. Section 121.003 prohibits, inter alia discrimination against visually handicapped persons acbompanied by support dogs intheir use ofpublic facilities. Section 121.004(a) provides:

(a) Aperson, firm, association, corporation, or other organization, or the agent of
aperson, firm,association, corporation, or other organization who violates Section 121.003 of this chapter is guilty of a misdemeanor and on conviction shall be punished bv a fine ofnot le than $100 nor more than $300. (Emphasis sized.)

You say that "there appears tobe confusion regarding the appropriate legal jurisdiction in enforcing this law . . . . It appears as though the City is not sure whether the County should prosecute this matter, and the County isnot surewhether the City should prosecute this matter." You ask ouradvice inthis respect.
Article V, section 19, of the Texas Constitution provides in full:

Justice of the peace courts shall have original jurisdiction incriminal matters of misdemeanor cases punishable by fine only, exclusive jurisdiction incivilmatters where the amount in controversy is two hundred dollars or less, and such other jurisdiction

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asmay beprovided by law. Justices of the peace shall be ex officio notaries public.

The Code ofCriminal Procedure, article 4.11, still provides that justice courts have jurisdiction ofmisdemeanors "where the fine to be imposed by lawmay not exceed two hundred dollars." This provision was codified into the current Code ofCriminal Procedure in 1965. Acts 1965, 59th Deg., ch. 722, at 331. At that time article V, section 19,of the constitution still provided that justice court jurisdiction extended to l'criminalmatters ofall caseswhere thepenalty
or fine tobe imposed by lawmaynot bemore than for two hundred dollars." S.J.R. 14,Acts 1985, 69th Deg., 8 7, at 3359. The current provisions of article V, section 19, expanding justice court jurisdiction to "misdemeanor cases punishable by fine only"were adopted in 1985. Id.

We think that the current article V, section 19, provision in question indicates on its face that it is self-enacting, i.e., that itsprovision for justice court jurisdiction over "misdemeanor cases punishable by fine onlytodoes not require further legislative action to be given effect. The public notice given forthat constitutional amendment election ("Theamendment would provide for the jurisdiction of justice courts, which may have additional jurisdiction as provided by law.") as well as the explanatory materials prepared by the Legislative Council andHouse Study Group, support, we think, our conclusion. that theprovision is self-enacting and controls over the
narrower jurisdictional provision still found in article 4.11 of the Code of Criminal Procedure. a Analyses of Proposed Constitutional Amendments Appearing on the November 5, 1985 Ballot, Texas Legislative Council Information Report No. 85-3,August 1985 ("changes . . .redefine
. . .justice court jurisdictionU*);House Study Group Special Legislative Report, 1985 Constitutional Amendments, August 23, 1985 ("Thespecific constitutional grants of jurisdiction to justice-of-the-peace courts inArt. 5, sec. 19,would be eliminated, except for original jurisdiction over misdemeanors punishable by fineonly . . . .");see also, Gov't Code §27.031 (providing that justice courts have "the jurisdiction and powers provided by the constitution and other law").
Thus, at the county level, justice of thepeace courts would have jurisdiction over the offense described in section 121.004(a) of theHuman Resources Code.

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Also, at the county level, various criminal district courts and constitutional and statutory county courts would have jurisdiction over such offense depending on the particular county in question. &=g Gov*t Code ch. 24, subch. E (county (particular criminal district courtsa;,1;: ;;.;;z

court jurisdiction generally), . - . (particular county courts), 25.0003 (statutory county court jurisdiction generally), 25.0031-25.2512 (particular statutory county courts).

The officer performing the criminal lawduties of the county attorney has responsibility forprosecuting offenses inthe above-mentioned courts of the county. Code Crim. Proc. art. 2.02 (regarding county attorney's duties in courts of the county "below the grade

### ofdistrict court"). In some counties these duties areperformed by the officer known as the criminal district attorney. w Gov't Code ch. 44 (forduties of criminal district attorneys in particular counties). In a few counties they are performed by a district attorney. m Gov't Code ch. 43 (forduties of district attorneys in specific counties: particularly, for example, g43.180 regarding duties ofHarris County District Attorney to represent the state incriminal cases pending in district and inferior courts of the county).
Thus, inanswer toyour question, at the county level theprosecutor responsible for representing the state in justice of the peace courts, and inthe criminal district courts and constitutional and statutory county courts where those latter courts alsohave jurisdiction over the offense inquestion, would be responsible for prosecuting such offense.1

1. We also note that various particular district courts are given concurrent jurisdiction with county courts incriminal matters. In such cases thedistrict attorney responsible for prosecuting cases in such courts may prosecute the offense described in section 121.004(a) of the Human Resources Code. m Code Crim. Proc. art. 2.01 (district attorney#s duty torepresent the state indistrict court): Gov't Code SS 24.101-24.276, 24.351-24.507 (regarding particular district courts and judicial districts).

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Also, in a few cities the city attorney would have concurrent responsibility with the county level prosecutor forprosecuting the offense inquestion. While the jurisdiction ofmunicipal courts proper with respect to criminal
cases arising under state law is limited to offenses punishable by a fine not to exceed $200 under section 29.003(b) of theGovernment Code, and such courts would thus have no jurisdiction over an offense under section 121.004(a), the legislature has authorized certain municipalities to create adistinct tribunal called the municipal court of record. In some instances the legislature has expanded the jurisdiction of suchmunicipal courts of record beyond that provided formunicipal courts proper, which, as noted above, have no jurisdiction over the offense you ask about.

For example, the city ofAustin isauthorized to create municipal courts ofrecord having concurrent jurisdiction with the justice court 

### overcriminal cases punishable by fineonly. See Gov*t Code 5 30.323. Thus amunicipal court ofrecord created inAustin could have jurisdiction over a section 121.004(a) offense, and the city attorney or his deputies orassistants would be responsible for prosecuting such case. Gov't Code §§ 30.329, 30.490; see. e.0 id. 55 30.381, 30.383 (a DallasMunicipal Court ofRecord has concurrent jurisdiction with justice court over offenses punishable by fine only). But see id. SS 30.262-30.263 (Houston Municipal Court of Record jurisdiction over offenses forwhich justice court has jurisdiction onlywhere punishable by finenot to exceed $200), 30.141, 30.143 (Fort Worth Municipal Court of Record jurisdiction over offenses under state law limited to that ofmunicipal court proper). my id. ch. See 30 (the provisions for particular municipal courts of record).

We also understand that you are concerned about apparent confusion among municipal police and county sheriff#s office personnel as to their respective responsibilities for responding to reports of violations of section 121.004(a). Apeace officer, whether a sheriff or sheriff's deputy or a municipal police officer, has theduty to act tokeep the peace and to report toamagistrate u offenses under state lawcommitted within his jurisdiction. Code Crim. Proc. arts. 2.12, 2.13. Therefore it would be appropriate for a person wishing to report aviolation of section 121.004(a) to contact the sheriff's office or, ifthe offense was committed inan incorporated area, themunicipal police.

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SUMMARY

Theprosecutor at the county level -- the county attorney or in some cases the criminal district attorney ordistrict attorney --has responsibility for prosecuting the offense described insection 121.004(a) of the Human Resources Code, relating to discrimination against visually handicapped persons using support dogs inpublic facilities. Where the offense is committed in a city having a municipal court of recordwith jurisdiction
over such offense, the city attorney may also prosecute such offense inthat court.

JIM MATTOX Attorney General ofTexas

MARY KELLER FirstAssistant Attorney General

mu MCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STKAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared byWilliam Walker Assistant Attorney General

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