Untitled Texas Attorney General Opinion ( 1949 )

November 18, 1949
Hon. Homer L. Moss Opinion NO. v-946.
County Attorney
Wheeler County Re: The legality of filing
Wheeler, Texas a compiainton a mis--
demeanor of county
court grade in a jus-
tice court, requiring
ball there pending ap-
pearance before the
Dear Mr. Moss: county court.
Your request for an opinion is substantially
as follows:
"The town of Shamrock with estimated popula-
tion of some four thousand, is the most pop-
ulous village in Wheeler County. Quite a few
arrests are made weekly by Highway Patrolmen
and by some local officers of .vari.ous highway
violationsdue to the fact that U. S. Klghwag
No. 66 from Chicago to the West Coast runs
through the city named. The county seat is
ate Wheeler, a small town some eighteen miles
North of Shamrock and the highway named. Of-
ten these arrests are for the offense desig-
nated or known as 'D.W.1.' or 'drunkdriving'.
Such an offense Is liable to occur sometime
on Saturday night or on the eve of a holiday.
For obvious reasons the prisonersis In no
condition to properly answer before any court
or magistrate,but usually on the ~followlng
morning he is free from intoxication. For
quite a number of years the Justlce of the'
Peace office has been open for most of Sunday
and on the few occasions when not open the
justice is accessible and will come to the
office. The town of Wheeler, eighteenmiles
away, is a typical rural county seat. Be-
cause of various factors neither the county
judge or county clerk nor deputies are regu-
larly available on either a holldag or Sun-
day. An officer bringing a prisoner to
Hon. Homer L. Moss, page 2 (v-946)
Wheeler on such days often experiences ex-
treme delay in locating any of the officers
named, not due to inattentionor in-efficien-
cy but because of a combination of factors.
"The county jell is at Wheeler but the pris-
oner in such cases must remain Sunday and Sun-
day night in the Shamrock City lock-up (used
for county prisoners8s a temporary place of
detention.) Sometimesbond is sought or at
least complaintmade by the prisoner or his
counsel to sufficientdegree to motivate this
inquiry as to the rights applicable to the
situation."
QUESTION:
May officers file a complaint with the Jus-
tice of the Peace and could that officer re-
quire bail of the prisoner to appear before
the County Court In another town in the
County?
Article 802, V.P.C., Is as follows:
"Any person who drives or operates an
automobile or any other motor vehicle upon
any publLc road or highway in this State,
or upon any street or alley within the lim-
its of an incorporatedcity, tovn or vll-
law, while such person is intoxicated or
under the Influenceof Intoxicatingliquor,
shall be guilty of a q Lsdemeanor,and upon
conviction, shall be punished by confine-
ment in the County Jail for not less than
ten (10) days ncr more than two (2) years,
or bv a fine of not less than Fifty Dollars
50) nor more than Five Hundred Dollars
ti500bj or by both such fine and lmprlaon-
ment.
Article 235, V.C.C.P., 1s as follows:
*One arrestedfor a misdemeanor shall be
taken before a magistrate of the county where
the arrest takes place who shall take bail
and transmit immediatelythe bond so taken to
the court having jurisdictionof the offense."
HOU. Homer L. MOSS, page 3 (v-946)
Article 454, V.C.C.P., reads:
"Any officer making an arrest under a
capias in a misdemeanor may tn term time or
vacation take bail of the defendant."
In the case of Llndley v. State, 57 Tex. Crim.
346, 123 S.W.141 (1909), the court said:
"We find but one bill of exception in th8
record, which complains that the affidavitIn
this case, upon which the informationwas fil-
ed, was taken befora the justice of the peace
for precinctNo. 1, and delivered to the coun-
ty attorney, and the county attorney filed an
informationon it. This is clearly authorized
by the laws of this state."
~1s.o see Ex Part8 Holcomb, 60 Tex.Crim.204, 131 s.W.604
(1910); Gentry v. State, Tex.Crim.497,137 s.w.696 (1911).
In the case of Duncan v. State, 102 Tex.Cr%m.
612, 279 s.w.457 (1!925),be court sea:
I'Thejurisdictionof the county court
was questioned,because the complaint was
sworn to before a justice of the peace, and
because there was no transcript or certtifl-
cate of any proceedinghad In the justice
court. The record suggests nothlng more
than that the complaint was sworn to before
the justice of,the peace, and iniowation
was filed thereon by the county attorney.
Article 479, Vernon's C.C.P. (article415,
1925 Codification),provides that complaint
may be sworn to by any officer authorized
'to administerthe oath. Lindlep v. State,
58 Tex.Cr.R.346, 123 s.U.141; Gentry v.
State, 62 Tex.Cr.R.497,137 s.x.696.".
In view of the foregoing authoritiesand in
view of the fact that the County Judge and County Clerk
3r8 Lnaccesslble,it is our opinion that the Justice of
the Peace may accept the complaint in your factual sltu-
ation, issue a warrant, and require bail. But all papers
in the case should be forwardedto the County Clerk for
proper action. Mor8over, the County Attorney should pre-
pare an information,if the Justice Court Complaint is
. .. f
Hon. Homer L. Moss, page 4 (v-946)
Otherwie8 in proper form, and proceed to trial In the
County Court, said Court having jurisdictionof the of-
fense of driving while intoxicated.
SUMMARY
A Justice of the Peace may accept a
complaint and issue a warrant for driving
while Fntoxlcatedwhere the County Attor-
ney and County Clerk are inaCC8SSibl8,but
all papers shall be forwarded to the Coun-
ty Court for final dispositionof the case.
Yours very truly,
ATTORNEYGENERAL OF TEXAS
JRF:bh:mw
FIRST ASSISTANT
ATTORNEY GENERAL