You request our opinion concerning the authority of municipal court judges and justices the peace in traffic cases. You ask whether a judge may dismiss a moving violation charge in exchange for a plea guilty to a nonmoving violation which is not contained in the complaint, is not a lesser included offense and bears, no factual relationship to the defendant’s conduct. In order for a justice the peace or municipal judge to act in a criminal case, there must be a written sworn complaint charging that accused committed a particular offense against the laws of the state. Code Crim. Proc. arts. 45.01; 45.16; 45.17; 15.04; 15.05. The purpose of the complaint in a corporation court is to commence the ~proceedings and thereby confer jurisdiction upqn the court. Bass v. State, 427 S.W.2d 624, 626 (Tex. Crim. App. 1966). Absent a complaint, a judgment attempted to be entered on a plea is void. Bragg v. State, 6 S.W.2d 365 (Tex. Crim. App. 1926). Harris County v. Stewart, 41 S.W. 650 (Tex. 1697). It is essential that the corn- be sworn; otherwise the judgment is void. Ex pa rte Boxeman, 313 S.W.2d 300 (Tex. Crim. App. 1956). We note that if the original complaint charging a person is falsified, the person falsely altering it could be guilty of an offense under Penal Code section 37.10, Tampering with Governmental Record. See also Penal Code S 37.03, Aggravated Perjury; and S 39.02, Oftic= ?.&ession.

While most rights and procedural matters may be waived by a defendant, jurisdictional matters may not be waived. Casies Y. State. SO3 .--.-- -_-_-, ___ S.W.2d 262, 265 (Tex. Crim. App. 1973)t Utsman Y. State. i 165 S.W.2d 573 (Tex. __-__, I, ---...-.- .. Crim. App. 1972). A variance between the judgment of conviction and the offense charged in the pleading is fatal to the court’s jurisdiction or power, and a defendant’s plea of guilty is irrelevant. It is a fundamental jurisdictional principle that *2 Honorable Maurice 5. Pipkin - Page 2 (R-1294)

the state’s pleadi must support the Judgment. Martina v. State, 494 S.W.2d 162 (Tex. Crim. App. 973) (charge of shoplifting does not support conviction on guilty T

plea for theft)i Butler v. State, 462 S.W.td 596 (Tax. Crim. App. 1971) (charge of possession of beer does not support conviction on plea of guilty to unlawful sale); McCafferty v. State, 395 S.W.Pd 36 (Tex. Crim. App. 1965) (complaint aggravated assault on policeman does not support conviction on plea of guilty DUD; v 391 S.W.2d 61 (Tex. Crim. App. 1965) (charge of injuring personal property does not support conviction on plea of guilty to unlawfully carrying pistol); Acosta v. State, 365 S.W.2d 394 (Tex. Crim. App. 1965) (complaint of possession of beer for sale does not support conviction on plea of guilty for unlawful sale); see Carrillo v. State, 356 S.W.2d 635 (Tex. Crim. App. 1962) to theft from (indictment for robbery does not support conviction on plea of guilt person); Rx parte Dies, 272 S.W.2d 373 (Tex. Crim. App. 1954) indictment r for robbery does not support conviction on plea of guilty to theft from person, reduced at prosecutor’s request); Van Andale v. State, 196 S.W.2d 270 (Tex. Crim. App. 1946) findictment does not support conviction on plea guilty to theft for robbery from person, court without furlsdiction to try); see also Houston v. State,, 556 S.W.2d 345, 347 (Tex. Crim. App. 1977) fnln the absence jurisdiction, judgment of conviction was a nullity. . . . 3, Huntsman v. State, 12 Tex. Ct. App. 619, 633 0662) (nIhe law condemns no one until the matter has been duly charged against him.?.

Accordingly we believe that a justice of the peace or municipal judge is not authorized to dismiss a moving violation in return for a plea of guilty to an unrelated, nonmoving violation.

SUMMARY A justice of the peace or municipal court judge has no authority or power to change a complaint charging a moving violation to a nonmoving violation, and such judgment on an offense not charged would be void.

Very truly yours,

torney General of Texas APPROVED:

c

Honorable Maurice 5. Pipkin - Page 3 (H-1294)

Opinion Committee

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