Case Information
*1 Y GE AL HE OFTEXA~
The Honorable Melvin D. Whitaker Opinion No. H- 135 District Attorney
606 Crawford Street Re: Authority of a district Palestine, Texas 75801 attorney in a criminal
case transferred to his district after indictment Dear Mr. Whitaker: in another district
You have asked whether you, as district attorney for the 173rd Judicial District, may try a criminal case which, after indictment, has been transferred to that court from the Third Judicial District Court. The Third and 173rd Judicial Districts have identical boundaries, but the 173rd District Court has never empaneled a grand jury. Therefore, all indictments in Anderson, Henderson and Houston counties have been returned to the Third District Court.
The transfer of a case from one court to another is clearly autho- rized in Article 199a, V. T. C. S., $ 2.002(a), which provides:
“In any county in which there are two or more district courts, the judges of such courts may, in their discretion, either in term-time or in vacation, on motion of any party or on agreement of the parties, or on their own motion, transfer any case or proceeding, civil or criminal, on their dockets to the docket of one of the other said district courts; and the judges of the courts may, in their discretion, exchange benches~or districts from time to time. ” The transfer procedures have been repeatedly upheld. Garcia v. State, 429 S. W. 2d 468 (Tex. Grim. 1968); Ehrlich V. State, 281 S. W. 548 (Tex. Crim. 1926); Littleton V. State, 239 S. W. 202 (Tex. Grim. 1922); Cummings V. State, 35 S. W. 979 (Tex.Crim.1896); Moore v. State, 35 S. W. 668 (Tex. Crim.1896).
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The Honorable Melvin D. Wbitaker, page 2 (H-135)
When the case is transferred, it is a case in the transferee court, and it is the duty of the district attorney of the district which received the State. Artic:le 2.01, Vernon’s Texas Code of the case to represent Criminal Prodecure; and see Acts 1973, 63rd Leg., ch. 442, p- 1228, creating the office of District A,ttorney of the 173rd Judicial District.
We know of no constitutiona:l limitation which would require a dif- ferent result.
SUMMARY It is the duty of the District Attorney for the 173rd Judicial District to prosecute a criminal case transferred to that court from the Third Judicial District Court in which the indictment was returned. Very truly yours, Attorney General of Texas n
DAVID M. KENDALL, Chairman
Opinion Committee
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