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MISS Naomi Haney County Attorney Potter County Amarillo,Texas

Dear Miss Harney:
Your request questions: October 6, 1964
OpinionNo. C-327
Re: Acquiringof jurlsdiction by Corporationor Justice Court where complaint,alleges

simple assault but facts show aggravatedassault under Section 9, Art. 1147, Vernon's Penal Code. for our opinion sets out the following
"QuestionNo. 1: In a trial In Corporation Court or Justice Court, the complaintalleges a simple assault by John Doe in and upon the person of Helen Doe, no evidencehaving 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? "QuestionNo. 2: In a trial in Corporation Court or Justice Court the complaintalleges 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 conplaintthat 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 defendantcould be convictedof aggravatedassault?"

tery, I’ Article 1138, Vernon's Penal Code, "Assaultand Batprovides: "The use of any unlawful violence upon the person of another with intent to Injure him, whateverbe the means or the degree of violence

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used, Is an assault and battery. Any attempt to commit a battery, or any threateninggesture showing In Itself or by words accompanyingit, an Immediate intention,coupledwith an ability to commit a battery, Is an assault." Article 1147, Vernonla Penal Code, Definitions,provides:
"An assault or battery becomes aggravated when committedunder any omollowing circumstances:

"(9) When committedby an adult male upon the person of a female or child or by an adult female upon the person of a child." (Emphasisadded) Our Courts have held that in every Indictmentor information chargingaggravatedassault, slm le assault Is necessarilyincluded. Bennett v. State, 1 5 S.W. 14 (Tex. Ii Crim.1916). Aggravatedassault and bai?tery necessar$.ly

lneludes simple assault and battery; one can not be heard to complainof convictionof the latter on F; roof sufficientto establish the former. App. 1888). Foster v. State, S.W. 664 (Tex.

A convictionfor simple assaultmay be had under a charge of aggravatedassault. S.W.2d 460 (Tex.Crlm.1939). Booker v. State, 127

By analogy, drivingwhile Intoxicatedis a mlsdemeanor unless a prior convictionIs alleged and proved, and where accused has been previbusly convictedof drunk driving, indictmentchargingdrunk drivingmay allege one or more such convictions, and proof of primary offense and one such prior conviction is sufficientto sustain conviction for felony under Vernon's Penal Code, Article 63, 802b. Our Court of CriminalAppeals has held that where no previous conviction is alleged, the offense of drivingwhile intoxicated Is a misdemeanorof 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 specificanswer to your questions lies in the fundamentalpropositionof 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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each Instancealleges 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 repeatedlyheld that pleadings or allegationsdetermine the amount In controversyin placing jurisdictioninto the county or justice court. No differentrule is to be,found for violationsof 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 CorporationCourts or Justice Courts are not required to dismiss an alleged simple assault case which is in fact an aggravatedassaulti:or,when'.later the facts &t the trial reveal an aggravatedassault. Very truly yours, WAQGONER CARR Attorney General of Texas

V. F. Taylor u AssistantAttorney 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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