Case Information
*1 The Attorney General of Texas
F~hruary 21, 1986 JIM MAlTOX
Attorney General Opinion No. JM-435 Eonorable Dale Hanma
Supreme Court BulldlnO Johnson County Attwmey P. 0. Box 12548 1st Floor, Courthouse Re: Responsibility for notlficatlon Aus?,“, TX. 78711.2548 51214752501 76031 of defendants In criminal cases Cleburne , Texas Telex SlOI874~13B7 Telecopier 5121475-0286 Dear Mr. Hauna:
YOU ask the fallowing questions about notification of misdemeanor
714 JacksOn. BUM 700 Dallas, TX. 752024508 defendants of cerl.ain criminal proceedings: 214i742.8944
1. Vhoae responsibility it to notify defendauta and/or defense attorneys of criminal 4B24 Alberta Ave., Suite 160 miademerluor arraignment. pre-trial, and trial El Paso. TX. 799052793 91Y533-3484 setting:, the district court, i.e.,
secretary, prosecutor, district courzerk, or sheriff’s office?
1001 Texas. Suite 700 Houston. TX. 77002.3111 2. ‘3oea the district court have jurisdiction 71312235886 to order the prosecutors to notify criminal defendants of arraignment, pre-trial, 606 Broadway, Suite 312 settings? Lubbock. TX. 79401.%79 8oBl747.523B 3. Is a prosecutor by disciplinary rule DR-7-104 from notifying 4303 N. Tenth, Suite B defendants such arraignmtnt, pre-trial. McAllen. TX. 78501-1585 settings after they have employed counsel? 512lW2-4547 Tour request letter poses the question primarily as a choice 200 Main Plaza, suite 400 benreen the diatl:j.ct court and the prosecutor. We note, however, that San Antonio, TX. 782062797 jurisdiction over misdemeanor cases is divfded between the district 512!225-4191 courts and the county courts according to the nature of the offense.
See Code Grim. Pcoc. arts. 4.05, 4.07. In Johnson County, the county zrt and the dil,trict court have concurrent jurisdiction over certain An Equal OPportUnitYl A,,,rmati”e Action Employer misdemeanor cases. See V.T.C.S. art. 1970-335. $2. See generally,
Regian v. Sowell~, 53S.W.2d 175, (Tex. Civ. App. - Waco 1976, writ ref’d n.r.e.). %rctlon 3 of article 1970-355 provides that
[t]he District Clerk of Johnson County shall
continu’c to perform all the clerical functions and the County Court of Johnson County, Insofar as all matters and csuses over which the *2 (JM-435)
Honorable Dale Hanna - Page :! county Court
said District Court and have concurrent jurisdiction, as hereinabove set out. Consequently, we address your question solely as one between over prosecutor’s and the court which properly has jurisdiction the misdemeanor case in question. 28.01 of the Texas Code of Criminal Procedure provides
for pre-trial hearings as follows:
Section 1. The court may set any criminal case for a pre-trial%aring before it is set for trial upon its merits,-$d direct the defendant and his attorney, if arp of record, and the State’s attorney, to appesr before the court at the time and place the court’s order for a statea conference and ‘Graring. The defendant rrmat be present at the arraignment, and his presence is required during any pre-trial proceeding. The hearinS shall be to determine any of the following matters: Arraignwnt of the defendant, if such be
(1) necessary; and appointment of counsel to represent the defendant, i:i such be necessary;
(2) Pleadings of the defendant; Special pleas, if any; (3) (4) Excepti’>us to the form or substance the indictment or information;
(5) Motions for continuance either by the State or defenclant; provided that grounds continuance not existing or not known at the time may be presented ,and considered at any time before the defendant announces ready for trial;
(6) Motions to suppress evidence -- When a hearing on motion to suppress evidence granted, the ccurt may determine the merits of said motion on the motions themselves, or upon opposing affidtwits, or upon oral testimony, subject to the discretion of the court;
(7) Hotionc for change of venue by the State the defendslt; provided. however, that such motions for change of venue, if overruled at the *3 Ronorable Dale Banns - Page 3 (a-435) hearing, may be renewed by the State or
pre-trial the defendant during the voir dire examination of the jury;
(8) Discovery; Entrapment; and
(9) (10) Hotlon for appointment of interpreter. Sec. 2. When a criminal case is set for such any such preliminary mattars hearing, not raised or filled seven days before the hearing will not thereaj’ter be allowed to be raised except by permission of the court for good filed, cause shown; Er:3”ided that the defendant shall have sufficient notice of such hearing to allow him not less thh 10 days in which to raise or file such prelim:&ry matters. The record made at such pre-trial t;aring. the rulings of the court and the exceptions and objections thereto shall become a part of the trial record of the case upon its merits.
Sec. 3. The notice mentioned in Section 2 above shall bci.f flcient if given in any one of the following wap:
(1) By announcement made by the court in open In the presence the defendant or his attorney of recocfa;
(2) By peracnal service upon the defendant or his attorney of record;
(3) By mail to either the defendant or his attorney of record deposited by the clerk in the mail et least alx days prior the date set hearing. If the defendant has no attorney record such notice shall be addressed to defendant at the address ,shown on his bond, if the bond shows such an a.ddress. and if not, it may be addressed to cm! of the sureties ou his bond. If the envelope wntaining the notice is properly addressed, atamlbed and mailed, the state will not be required to chow that it was received.
(Emphasis added: . *4 (311-435)
Elonorable Dale panna - Page 4 See generallg Barbee v. Stafc, 432 S.P.2d 78 (Tax. Grim. App. 1968), cert. denied, 395 U.S. 924 ;1,969). Section 1 of article 2!),01 states that the court shall direct the and the state’s attorney to appear at pre-
defendant, his attornay, Article Zl8.01 also authorizes three methods of triel hearings. notification: “[b]y announcement made by the court,” (2) “[bly personal aervicil) ” or (3) [‘bjy mail . . . deposited by the clerk.” We conclude that &is langua8e places the responsibility for notifying defendants of pre-trial hearings upon the court rather than upon the prosecuting attorney.
Other provisions in tlw Code of Criminal Procedure support this conclusion and suggest that the court must also notify defendants of Chapter 2 of the code, articles 2.01 through 2.24, settings. sets forth the duties of magistrates , a term which includes county and district court judges. Set Code Grim. Proc. ert. 2.09. These ducira include the issuance of xi process Intended to aid In prevent1r.g end 2.21(a) of the Code of suppressing crime. Id. a:%. 2.10. Criminal Procedure provides3 for the general duties of court clerks as follows: Each clerk or county the district
shall receive an3 file all papers and exhibits respect to criminel proceedings, issue all process in such csses, and perform all other duties imposed upon then by law.
In contrast, the provisions of the code vhf& set forth the dutlex of prosecutors, see arts. 2.01-2.08, neither require nor suthorize district attorneys, count]’ attorneys. or criminal district attorneys to issue or execute process. Consequently. the court, rather then the to notify defendants of prosecutor. has the reapo~~rribility hearings and trial settings. See Attorney General. Cpinion O-5694 - (1943).
Your second question requires consideretlon of whether the court to notify defendants by holds the power to fulfil:l fta responsibility ordering the prosecutor’s, to carry out these duties by ordering the prosecutor’s offlce to execute process court, a. issued by the court. AE indicated. the code imposes no duty on prosecuting attorneys to uotlfy defendants of pre-trial proceediner See Xncan V. State, 67 S.W. 903, 905 (Tex. Civ. App. 1902, no writ); cf.‘?aulder v. Dill, 612 S.b.2d 512 ITex. Grim. -- App. 1980).
t!oreover , the authority of court direct persona to serve process depends primarily on the statutes vhicb djrect the method of service. Article 2.13 of the Code of Criminal Prccrdure provides that *5 Honorable Dale Banns - Pago 5 (m-435)
every peace officer. as de,Eined in article 2.12. "shall execute all issued Mm by any magistrate or court." lawful process See also Code Grim. Pro. art. 2.1(,. A prosecuting attorney is not incltided within this definition ot "peace officer." The official duty to execute service of process issued by a magistrate falls upon sheriffs.
See Code Grim. Proc. arte,. 2.12, 2.13; Eeary S. Wlller Company v. -c. 452 S.W.2d 426 (Twt. 1970); Grass v. Grass. 608 S.W.2d 356 (Tax. Clv. App. - Dallas 1380, no writ); Cook v. Jones, 521 S.U.2d 335 (Tcx. Civ. App. - Dallas 1975, writ ref-'d n.r.e.); Attorney General Opinion E-595 (1975). Although the court may direct persons other than sheriffs to serve prwess in some circumstances, this authority does not properly extend t#D prosecuting attorneys. Consequently, we do not believe It is sppropriate the to order the prosecutor's to notify misdemeanor defendants of pre-trial hearings and trial
Tour final questiorl is vhether a prosecutor ethically prohibited from notifying misdemeanor defendants of pre-trial hearings settings by DR-"-104(A) of the disciplinary rules governing the State Bar. V.T.C.S. .%rt. 320a-1, Title 14. Appendix A. art. 12, 18. Rule DR-7-104 states:
(A) During the course of his representation of a client a 1awyc.r shall not:
(1) Conam.nicate or cause another to com- municate on the subject of the representa- tion with'?. party he knows to be represented by 1awyc:r in that matter unless he has the prior cor,sent of the lawyer representing such other party or is authorized by law to do so.
(2) Give advice to e person who is not representc:d by a lawyer, other than the advice to-secure counsel, if the interests such person are or have a reasonable possibility of being in conflict rZth interests of his client. (Emphasfs added).
Rotifvina a defendant of the need to auuear in court is not a corn- . . munication Non the subject the representation" prohibited by DR-7-104(A)(l). See gencEally Pannell v. State, 666 S.W.2d 96 (Tex. Grim. App. 1984); Renrlcliv. State, 694 S.W.2d 341 (Tax. Grim. App. 1985); State v. Lemon, 6011 S.W.Zd 313 (Tex. Civ. App. - Amarillo 1980, no writ). Such "advice" is more akin to advising a def&ndant to secure counsel. Conseqwntly. we believe that a proescutor is not by DX-7-104 from notifying misdemeanor defendants of pre-trial hearings and trial settings.
Ronorable Dele llama - Page 68 (JM-435)
SUUMARP 28.01 of the Texas Code of Criminal that court has the rrspon- Procedure provide:, to notify defendants of sibillty hearings. The court also has the responsibility to notify defet,dants A is not prosecutor, however, from notifying de:Eendants of pre-trial hearings setting:,.,
Very truly your J b
AA JIM MATTOX Attorney General of Texas JACK HIGRTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorneg General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIK
Chairman, Opinim Committee
Prepared by Jennifer Riggs
Assistant Attorney General