November 18, 1949

Hon. Homer L. Moss OpinionNO. v-946. County Attorney Wheeler County Re: The legality of filing Wheeler, Texas a compiainton a mis-- demeanor of county court grade in a justice court, requiring ball there pending appearancebefore the Dear Mr. Moss: county court.

Your request for an opinion is substantially as follows: "The town of Shamrock with estimatedpopulation of some four thousand, is the most populous village in Wheeler County. Quite a few arrests are made weekly by Highway Patrolmen and by some local officers of.vari.ous highway violations

due to the fact that U. S. Klghwag No. 66 from Chicago to the West Coast runs through the city named. The county seat is ateWheeler, a small town some eighteenmiles North of Shamrock and the highway named. Often these arrests are for the offensedesignated or known as 'D.W.1.'or 'drunk driving'. Such an offense Is liable to occur sometime on Saturdaynight or on the eve of a holiday. For obviousreasons the prisoners is In no conditionto properly answer before any court or magistrate,

but usually on the ~followlng morninghe is free from intoxication. For quite a number of years the Justlce of the' Peace officehas been open for most of Sunday and on the few occasionswhen not open the justice is accessible and will come to the office. The town of Wheeler, eighteenmiles away, is a typical rural county seat. Because of various factors neither the county judge or county clerk nor deputies are regularly availableon either a holldag or Sunday. An officerbringing a prisoner toHon. Homer L. Moss, page 2 (v-946)

Wheeler on such days often experiencesextreme delay in locatingany of the officers named, not due to inattentionor in-efficiency but because of a combinationof factors.
"The county jell is at Wheeler but the prisoner in such casesmust remain Sunday and Sunday night in the ShamrockCity lock-up (used for county prisoners8s a temporaryplace of detention.) Sometimesbond is sought or at least complaint

made by the prisoner or his counsel to sufficient degree to motivate this inquiry as to the situation." rights applicableto the

QUESTION: May officersfile a complaintwith the Justice of the Peace and could that officer require bail of the prisonerto appearbefore the County Court In another town in the County? Article 802,V.P.C., Is as follows: "Any personwho drives or operatesan automobileor any other motor vehicle upon any publLc road or highway in this State, or upon any street or alley within the limits of an incorporated city, tovn or vlllaw, while such person is intoxicatedor under the Influence of Intoxicating

liquor, shall be guiltyof a q Lsdemeanor,and upon conviction,shallbe punishedby confinement in the County Jail for not less than ten (10) days ncr more than two (2) years, or bv a fine of not less than Fifty Dollars
ti 50) nor more than Five HundredDollars 500bj or by both such fine and lmprlaonment. Article 235, V.C.C.P., 1s as follows:
*One arrestedfor a misdemeanorshall be taken before a magistrateof the county where the arrest takesplace who shall take bail and transmit immediately the bond so taken to the court having jurisdiction of the offense."HOU. Homer L. MOSS, page 3 (v-946)

Article 454, V.C.C.P., reads: "Any officermaking an arrest under a capias in a misdemeanormay tn term time or vacationtake bail of the defendant."
In the case of Llndley v. State, 57 Tex.Crim. 346, 123 S.W.141 (1909),the court said:

"We find but one bill of exceptionin th8 record,which complainsthat the affidavitIn this case, upon which the information was filed, was taken befora the justice of the peace for precinctNo. 1, and delivered to the county attorney,and the county attorney filed an informationon it. This is clearly authorized **by** the laws of this state."
~1s.o see Ex Part8 Holcomb, 60 Tex.Crim.204, 131 s.W.604 (1910); Gentry v. State, Tex.Crim.497,137 s.w.696 (1911).

In the case of Duncan v. State, 102 Tex.Cr%m. 612, 279 s.w.457 (1!925), be court sea: I'The jurisdiction

of the county court was questioned,

because the complaintwas sworn to before a justice of the peace, and because there was no transcriptor certtiflcate of any proceedinghad In the justice court. The record suggestsnothlngmore than that the complaintwas sworn to before the justiceof,thepeace, and iniowation was filed thereon by the county attorney. Article 479, Vernon's C.C.P. (article415, 1925 Codification), provides that complaint may be sworn to by any officer authorized 'to administer

the oath. Lindlep v. State, 58 Tex.Cr.R.346, 123 s.U.141;Gentry v. State, 62 Tex.Cr.R.497,137 s.x.696.".
In view of the foregoingauthorities and in view of the fact that the County Judge and County Clerk 3r8 Lnaccesslble,

it is our opinion that the Justice of the Peace may accept the complaintin your factual sltuation, issue a warrant, and requirebail. But all papers in the case should be forwardedto the County Clerk for proper action. Mor8over, the County Attorneyshouldprepare an information, if the Justice Court Complaintis... f

Hon. Homer L. Moss, page 4 (v-946)

Otherwie8 in proper form, and proceed to trial In the County Court, said Court having jurisdictionof the offense of driving while intoxicated.
SUMMARY
A Justice of the Peace may accept a complaint and issue a warrant for driving while Fntoxlcated

where the County Attorney and County Clerk are inaCC8SSibl8, but all papers shallbe forwardedto the County Court for final dispositionof the case.
Yours very truly,
ATTORNEYGENERAL OF TEXAS

JRF:bh:mw

FIRST ASSISTANT ATTORNEYGENERAL