November 18, 1949 

Hon. Homer L. Moss Opinion NO. 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 appearance before the 

Dear Mr. Moss: county court. 

Your request for an opinion is substantially 

as follows: 

"The town of Shamrock with estimated population 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 

ate Wheeler, a small town some eighteen miles 

North of Shamrock and the highway named. Often these arrests are for the offense designated or known as 'D.W.1.' or 'drunk driving'. 

Such an offense Is liable to occur sometime 

on Saturday night or on the eve of a holiday. 

For obvious reasons the prisoners is In no 

condition to properly answer before any court 

or magistrate, but usually on the ~followlng 

morning he is free from intoxication. For 

quite a number of years the Justlce of the' 

Peace office has been open for most of Sunday 

and on the few occasions when not open the 

justice is accessible and will come to the 

office. The town of Wheeler, eighteen miles 

away, is a typical rural county seat. Because of various factors neither the county 

judge or county clerk nor deputies are regularly available on either a holldag or Sunday. An officer bringing a prisoner to 
Hon. Homer L. Moss, page 2 (v-946) 

Wheeler on such days often experiences extreme delay in locating any of the officers 

named, not due to inattention or in-efficiency but because of a combination of factors. 

"The county jell is at Wheeler but the prisoner in such cases must remain Sunday and Sunday night in the Shamrock City lock-up (used 

for county prisoners 8s a temporary place of 

detention.) Sometimes bond 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 applicable to the 

QUESTION: 

May officers file a complaint with the Justice of the Peace and could that officer require bail of the prisoner to appear before 

the County Court In another town in the 

County? 

Article 802, V.P.C., Is as follows: 

"Any person who drives or operates an 

automobile or 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 intoxicated or 

under the Influence of Intoxicating liquor, 

shall be guilty of a q Lsdemeanor, and upon 

conviction, shall be punished by 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 Hundred Dollars 

500bj or by both such fine and lmprlaonment. 

Article 235, V.C.C.P., 1s as follows: 

*One arrested for a misdemeanor shall be 

taken before a magistrate of the county where 

the arrest takes place 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 officer making an arrest under a 

capias in a misdemeanor may tn term time or 

vacation take 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 exception in th8 

record, which complains that the affidavit In 

this case, upon which the information was filed, was taken befora the justice of the peace 

for precinct No. 1, and delivered to the county attorney, and the county attorney filed an 

information on 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 complaint was 

sworn to before a justice of the peace, and 

because there was no transcript or certtiflcate of any proceeding had In the justice 

court. The record suggests nothlng more 

than that the complaint was sworn to before 

the justice of,the peace, and iniowation 

was filed thereon by the county attorney. 

Article 479, Vernon's C.C.P. (article 415, 

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 foregoing authorities 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 complaint in your factual sltuation, issue a warrant, and require bail. But all papers 

in the case should be forwarded to the County Clerk for 

proper action. Mor8over, the County Attorney should prepare an information, if the Justice Court Complaint is 
. . . f 

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

Otherwie8 in proper form, and proceed to trial In the 

County Court, said Court having jurisdiction of 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 shall be forwarded to the County Court for final disposition of the case. 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

JRF:bh:mw 

FIRST ASSISTANT 

ATTORNEY GENERAL