Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS hUBTIN
-a.- -- Edgar A. Maddox
Honorable
County Attorney
Palo Pinto County
Palo Pinto, Texaa
Dear 31x-r Opinion Iio. o-3970
Rer
(1) Is it lavful an4 proper
for a justice
sitting a8 a coPm1telng to accept com-
plaint and lsaue 6 warrant of armat for an offense that 1s vlthln the juriw the oounty court of diCtAOn of the county? (2) Should not the complaint issued by a justice peace in the above rituatlon be fllod upon his examining trial docket and then trsa- mltted to the Countg Clerk after examining trial is had or valverl?
¶‘hls is to acknovledge your latter requesting our opinion upon the questlone stat& above.
,In examining the authorities relative to the first statement by Judge Brooks of question, we find the follovl~ ths Court of CrimLnal Appeals in the case of Llndley vs. State, 57 Tex. Cr. R. 346, 123 3. U. 1411
“Ue find but one bill exception ln the record, vhloh complains that the affidavit in
this case, upon vhlch lnformatlon VBE filed,
Honorable Edgar A. Maddox, Page 2
was taken before the of the.peaoe for lo. 1, and delivered to the county precinct attorney, end the county attorney flied an This is clearly author- information on it.
imd by the laws of this state.”
The Llndley case WRB followed in the cast of Duncan vs. Stat/s, 132 Tex. .Cr. R. 612, 279 S. V. 4,jY’. Sea also, Gentry ve. State, 62 Tex. Cr. R. 497, 137 5. W. 696.
From a reading of the above cited casts it 1s clear
that la lawful and proper for a juatlce of the peace to ac- cept a complaint for en offense that 1s wlthln the jurisdiction 415, Code of Criminal Procedure. of the county court. See Article Upon acceptance of the complaint, It is the duty of the to issue a warrant the arrest of the accused. See Article 223, Code of Crlmlnal Procedure. Your first question 1s therefore answered in the afflrmatlve.
The wnrrant of arrest is executed, as provl4ed by Ar-
ticle 333, Code of Criminal Procedure, by the offlccr or other to uhom lt 1s directed, person taking the person charged forth- with ‘before the maglntrate who issued the warrant, or before the magistrate ncmed ln the varre.nt.” Article 245, Code of Crlm- inal ProceBure, reads as follows%
%hon the accused has been brought before a lnnglstrate, that officer shall proceed oxamlne into the truth of the accusation mndc, allowing the accusetf, however, sufflolont tlnc to procure counsel.
The accused may waive the examination allude4 to in the above statute. If he does waive, the ma&lstrnte require a proper bond and transmit the complaint to the county attorney, who ahould prepare and fllc an information based upon Both the complaint and lnformatlon shvuld be the complalnt. in the county court. If, upon the examfnation the megls-
trate is satleflcd from the evidence that St is probable that the accused is guilty of an offense of which the county court has jurisdiction, it 1s the duty
send the whole case to the county court, even though the com- contnirs some counts ot’ whi.ch court would have See the oane of Rx parte Holcomb, 63 Tex. Cr. R. jurlndlctlon. 204, 131 S. w. 634, where a writ of habeas corpus was sought on *3 Honorable Edgar A. Maddox, Page 3 that the county oourt had no jurlrdlotlon
the iround of the oaao, originally :n the jurtloe 0ourt;and vhioh vaa transferred to the county court following an examining trial.
The Court of Criminal Appeal8 hold the relator entitled no relisf, saying the above prooedure u&s propor.
The oass of Wronn VB. State, 82 Tex. Cr. R. 642, 200 S. Ii! 844, approves the prooedure of the justloe of the psaoe aoceptlng a complaint and making the varrant of arrest rsturnable to the county oourt. In that oaao the sheriff made the affidavit on a Sunday, the Oomplaint oharglng the defend- The justice of the peats ant vlth gaming. transmitted ths oom- court the next day, and on said date to tha county (Mon- day) the oounty attorney fllod hia information, based upon the complaint sworn to before the jurtioe of ths peace; appeal vas perfected from the judgment of the county oourt, but the ap- there vas no error, approving pellate court held the procedure followed in the lowsr oourts.
In tmow4r to your second queatlon la our opinion that the of the peaob, when sitting aa a maglatrato hold an axamlning trinl, should file the complaint, issue varrant and other prooom, and note the aHme upon his examin- Upon waiver by the aocused, lng trial dookct. or detormlna- tlon by the juatloo of the peaoe that accused should be held to answer to the oounty Court, all papers in the case should be forthvith foxwarded to the oounty clerk for proper notion in the premises. The county attorney then prapare his informatlon$ lf court complaint is otharvise In propsr form, the cam lr then rsady trial in the county court. A POV complaint Is unnocosaary nnd the defendant is bound to appear upon his bond made in response to the order court binding him to the county court.
w4
Trusting the above fully ansvera your inqulrlea,
ar4
Yours very truly . : ,~’ :A:;; Benjamin Woodall : “‘Zkh4L Assistant BUr R3
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