..a 

E 

MISS Naomi Haney 

County Attorney 

Potter County 

Amarillo, Texas 

Dear Miss Harney: 

Your request 

questions: 

October 6, 1964 

Opinion No. C-327 

Re: Acquiring of jurlsdiction by Corporation or 

Justice Court where 

complaint,alleges simple assault but facts 

show aggravated assault under Section 9, 

Art. 1147, Vernon's 

Penal Code. 

for our opinion sets out the following 

"Question No. 1: In a trial In Corporation 

Court or Justice Court, the complaint alleges 

a simple assault by John Doe in and upon the 

person of Helen Doe, no evidence having been lntraduced that John Doe Is an adult male and Helen 

Doe Is a female, and It not being alleged that 

John Doe is an adult male and Helen Doe is a femile. Must the Court dismiss the simple assault 

case before it due to lack of jurisdiction? 

"Question No. 2: In a trial in Corporation 

Court or Justice Court the complaint alleges a 

simple assault by John Doe in and upon the Person of Helen Doe, the facts show that John Doe 

Is an adult male and Helen Doe is a female; 

however, it Is not alleged in the conplaint that 

JoToloe is an adult male and Helen Doe is a 

Must the Court dismiss the simple assault iasa before It due to lack of jurisdiction, 

where the facts show that the defendant could 

be convicted of aggravated assault?" 

tery, I’ 

Article 1138, Vernon's Penal Code, "Assault and Batprovides: 

"The use of any unlawful violence upon the 

person of another with intent to Injure him, 

whatever be the means or the degree of violence 

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Miss Naomi Harney, Page 2 (C-327) 

used, Is an assault and battery. Any attempt 

to commit a battery, or any threatening gesture 

showing In Itself or by words accompanying it, 

an Immediate intention, coupled with an ability 

to commit a battery, Is an assault." 

Article 1147, Vernonla Penal Code, Definitions, provides: 

"An assault or battery becomes aggravated 

when committed under any omollowing 

circumstances: 

"(9) When committed by an adult male upon 

the person of a female or child or by an adult 

female upon the person of a child." 

(Emphasis added) 

Our Courts have held that in every Indictment or information charging aggravated assault, slm le assault Is 

necessarily included. Bennett v. State, 1 Ii 5S.W. 14 (Tex. 

Crim.1916). Aggravated assault and bai?tery necessar$.ly lneludes simple assault and battery; one can not be heard to 

complain of conviction of the latter on 

F; 

roof sufficient to 

establish the former. 

App. 1888). 

Foster v. State, S.W. 664 (Tex. 

A conviction for simple assault may be had 

under a charge of aggravated assault. 

S.W.2d 460 (Tex.Crlm. 1939). 

Booker v. State, 127 

By analogy, driving while Intoxicated is a mlsdemeanor unless a prior conviction Is alleged and proved, and 

where accused has been previbusly convicted of drunk driving, indictment charging drunk driving may allege one or 

more such convictions, and proof of primary offense and one 

such prior conviction is sufficient to sustain conviction 

for felony under Vernon's Penal Code, Article 63, 802b. Our 

Court of Criminal Appeals has held that where no previous 

conviction is alleged, the offense of driving while intoxicated Is a misdemeanor of which the count court has jurlsdiction. Wllllams v. State, 342 S.W.2d 55 1 

Coker v, State, 198 Te C 

(Tex. Crlm. 1961); 

141, 253 S.W.2d 668 (Tex.Crlm. 

932); and, May v, Sta$,r35i) S.W.2d 924 (Tex.Crti. 1961). 

The specific answer to your questions lies in the fundamental proposition of acquiring jurisdiction by the corporation or justice court. The Court acts upon the facts 

alleged or presented in the complaint. If the complaint In 

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Miss Naomi Rarney, Page 3 (C&327) 

each Instance alleges a mere simple assault, the Court acquires jurisdiction. Under the: provision of, Section 16 and 

Section 19, Article 5, Constitution of Texas, our Courts 

have repeatedly held that pleadings or allegations determine 

the amount In controversy in placing jurisdiction into the 

county or justice court. No different rule is to be,found 

for violations of our penal laws, and the Court must, therefore; rely on the facts alleged In the complaifit. The answer, therefore, to both your questions 1s "No." 

SUMMARY 

Corporation Courts or Justice Courts are 

not required to dismiss an alleged simple assault case which is in fact an aggravated assaulti:or, when'.later the facts &t the trial 

reveal an aggravated assault. 

Very truly yours, 

WAQGONER CARR 

Attorney General of Texas 

V. F. Taylor u 

Assistant Attorney General 

VFT/dt 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairmaxi 

Scott Garrison 

Brady Coleman 

Howard Fender 

George Black 

APPROVED FOR THE ATTORNEZ GENERAL 

By: Roger Tyler 

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