Untitled Texas Attorney General Opinion ( 1971 )

i .. January 27, 1971 Honorable Ned Granger Opinion No. M-776 County Attorney County Courthouse - Re: Does Article ._ * I;oae veznon's ^-_ of Austm, TeXaS Criminal Procedure, require that the Jus- tice of the Peace pre- sent the State's case in a non-jury crimi- nal trial in the ab- sence of the county Dear Mr. Granger: attorney? Your recent letter to this of.ficerequests our opinion as to whether a Justice of the Peace,'in view of Article 15.36 of Vernon's Code of Criminal Procedure, is required to present the State's ca.sein a non-jury criminal trial in the absence of the county attorney or his assistant. Our opinion is that the Justice of the Peace has no power or authority to present the State's case in a cri- minal trial in the absence of the county attorney or his assistant. Section 21 of Article V, Constitution of Texas, provides, in part, that, I . . . The County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties; but if any county shall be included in a district in which there shall be a District Attorney, the respect- ive duties of District Attorneys and County Attorneys shall in such counties be regulated by the Legislature. . .* Article 2.02, Vernon's Code of Criminal Procedure, like- wise provides that, "The county attorney shall attend the terms of court~in his county belowthe grade of district court, and shall represent the State in all criminal‘cases under examination or prosecu- tion in said county; . . ." -3779- Honorable Ned Granger, Page 2 (M- 776 ) We find no authority in the statutes or the Constitu- tion for .khe Justice of the Peace to present the State's case or represent either the State or the defendant under any circumstance*. “All prosecutions in a corporation court shall be conducted by the city attorney of suck city, town or village, or by his deputy. The county attorney of the county in which said city, town or village is situated may, if he so desires, also represent the State in such prosecutions. In such casea, the said county attorney shall not be entitled,to receive any fees or other compensation whatever for said services. The county attorney shall have no power to dismiss any prosecution Fending in said court unless for reasons filed and approved by the recorder." In view of this Article, those prosecutions originating in a corporation court, must be conducted by a city attorney or by his deputy or by the county attorney. Article 30.01, Code of Criminal Procedure, provides that no Justice of the Peace shall sit in any case if he has ever been counsel for either the State or the accused: and Articie 2378, Vernon's Civil Statutes, in prescribing disqualifica- tions of the Justice of the Peace. declares that he shall not sit I. . . in a cause where he may be interested. . .'I If t!!eJustice of the Peace should attempt to present the case for the State or represent to any degree either party to the proceeding, he would thereby disqualify himself to sit as the judge in the case. A trial judge may ask questions of a witness to enable him to i3ake en intelligent ruling or to make ciear certain features of the testimony: his authority, however, falls far short of "presentation of" the State's case. Texas Digest, Crim. Law 656, 656(2), 1166 l/2(12), and Witnesses 246. Therefore, considering all laws on the subject in para materia and harmonizing them, 0~1 opinion is that Article 45.36, Vernon's Code of Criminal Procedure, merely imposes upon the.Justice of the Peace, in the interest of justice, I -3780- Honorable Ned Granger, Page 3 (M-776 ) the duty to examine the witnesses if the State or the defendant is not represented by counsel. The statute does not imply that the Justice of the Peace shall have the authority to undertake the representation of the State's interest. SUMMARY Article 45.36, VernonIt,Code of Crizi-al ?'r:c,;_L*<:::?. does not authorize or require the Just.xc cc ii,a Peace to present the State's case or uzlarr3ke the representation of the Staxe's i;.;zssz :r; any case before him. Ve,# truly yours, /I 24 'h? -.,._ gL$-Jy ;~;y;.&tiL./ Xktornq Ganerai cf Texas Prepared by Robert Darden Assistant Attorney General APPROVED: OPINION COi4MITTEE Xerns Taylor, Chairman W. E. Allen, Co-Chairman Jay Floyd Sam Jones John Reese Gordon Cass MEADE F. GRIFFIN Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant