Untitled Texas Attorney General Opinion ( 1984 )

. .
The Attorney General of Texas
JIM MAlTOX August 13, 1984
Attorney General
Sucmme Cowl Bulldlno Eonorable Hike.Drim:oll Opiniw No. m-190
P. 0. Box 12545 - Eerrie County Atto::uey
AUS!h TX. 75711. ?%a 1001 Preston, Suit! 634 Re: Venue of criminal proceedings
5121475-2501 Houston, Texas 7’1002 in Justice Courts
Telex SWS74~1367
Telecopier 51214750266
Dear Mr. Driscoll:
714 Jwkson. Suits 700 You have asked the folloving questions relating to the venue of
Dallar. TX. 752024506
certain criminal prxeedings in the justice courts in Earris County:
21417428844
1. Dues article 4.12 or article 45.22 of the
4S24 Albsfi. Ave.. suite 180 Code of *:riminal Procedure control the venue of
El P880, TX. 7SSG52793 criminal charges filed pursuant to section 32.41
s1m34s4 of the I’mal Code ‘ia the justice courts of Harris
County, tmd is the applicable article, if any.
ml fexss. sulle 700 mandatory or directory?
HPUS~D~.TX. 77002.3111
713mMSe6 2. Is it proper for a:justice of the peace in
Eartie Ccunty to do any of the following:
W5 Broadwsy. Suile 312 , ~.‘!-il)“‘A.ccept a-bad check charge/complaint fdi an
Lubbock. TX. 7S401.347’2
aow-747~5239 :, -offense wh%chth:occurred within ‘Barris County but
not withim his precinct? ’
43C4 N. Tenth. Suit0 B
MeAllen. TX. 7SYmlSa5
‘.:. ‘.~- (2) :&wept a’bad recheck charge/complaint for ‘an
r ,offense~%hich occnrred ‘with%% his precinct when
5wS524547 ,-
defendautresides in, Barris County but not within
his prec:!.nctP ’
200 Mm Plu*. suite 400
Ssn Anmnlo. TX. 782052797
(3) rLccept a bad check charge/complaint for an
512l225-4181
offense which occurred within his precinct but
.defandarr: resides in another county?
An Equal OpporWW/ .t
*fflrm*tlvo ActIon Employ*r Your request for an opinion is accompanied by a brief which also
dfacuases the eonatitutionality of .artlcles 4.12 and 45.22.
Article 45622 of. the Code of Criminal Procedure determines the
venue of criminal charge8 filed in the justice courts of Darris County
for ~the offense of issuing a bad check under sectlon 32.41 of the
Penal Code, and its provisions are mandatory. Except as provided if a
justice of the pcwce ie disqualified. it is not proper for a justice
D. 830
Honorable ,Mike Drincoll - :?age 2 (JH-190)
of the peace in Harris Cowty to accept such a bad check case when the
offense does not occur rdthin his precinct, but it is proper,
regardless of the residema, of the defendaut. vhm the offense does
occur within his preclact.
Section 32.41 of the Penal Code lists the elements that
constitute the offowe of issuance of a bad check and provides that
such an offense is a Class C Msdewanor. A Class C Misdemeanor is
punishable only by a fins not to exceed $200, vhich punishment
conforms to the constitutional and ltatutory jurisdiction of the
justice court in this stwe. Article 0, rection 19, of the Texan
Constitution provides in ptrt that
Justices of the :Peace shall have jurisdiction in
criminal matters >f all cases where the penalty or
fine to be woei by law may not be more than for
two hundred dollarr . . . .
Article 4.11 of the Code of Criminal Procedure specifies that justices
of the peace have jurisdiction in criminal cases where the fine to be
imposed by law may not exceed $200. Accordingly, the offense of
issuance of a bad check under eection 32.41 is vithin the subject
matter jurisdiction of the justice courts.
Venue does not lisdt or affect the jurisdiction that is
prescribed by the constitwion and by statute for the justice court.
“Venue ,” as applied to ,criminal cases. means the place in which
prosecutions are to begin, uhile “jurisdiction” means the power of the
court to hear and determiuo the case. The terms are not syoonymotiS~
See Martin v. State, 385 8.U.2d 260 (Tax. Grim. App. 1964); Bradley v.
saringen. 525 S.W.Zd 28Cm(Tex. Civ. App. - Eastland 1975. no writ);
Attorney General Opinion D-1026 (1977). The Texas Constitution gives
the legielaturc pouer~to fir.venue and the courts pouer to change
venue in the manner providedby law. Article III, section 45. of the
constitution atates that ,~:he “power to change the venue in civil and
criminal cases shall be vwted in the courts, to be exercised in such
manner as shall be proviclcd by law; and the Legislature shall pass
laws for that puipose.”
We believe that articles 4.12 and 45.22 are merely venue
requirements for criminal cases within the jurisdiction of the justice
courts , including the off,mse of immuing bad checks under section
32.41 of the Penal Code. Article 4.12 establishes justice court venue
for misdemeanor cases ucrpt to the extent that, in each of the
several counties in the state which have a population of at least
225,000. article 45.22 fires venue in the justice courts. Hence
article 45.22, rather ttun article 4.12. is applicable in Earris
County. See Bradley v. lpearingen, B; Attorney General opinion
E-1026. Article 45.22 prcvides as follows:
0. 831
Ilonorable Mike Driscoll - Page 3 (Jn-190)
Sec. 1. No p’crson shall ever be tried in any
justice precinct court unless the offense with
which he was ‘::larged was colPlnitted in such
prscinct . Provided, however, should there be no
duly qualified justice precinct court in the
precinct where llulcb offense was emitted, then
the defendant ohall be tried in the justice
precinct next adjacent which ry have a duly
qualified justice court. And provided further,
that if the justice of the peace of the precinct
in which the offense vaa~comitted is disqualified
for any reason for trying the case, then such
defendant may t,r, tried in some other justice
precinct within r:he county.
Sec. 2. No constable shall be alloved a fee in
any misdemeanor t:rise arjsing in any precinct other
than the one for which he has been elected or
appointed, exccrt through an order duly entered
upon the mlnut’es of the county commissioners
court.
Sec. 3. Any justice of the peace. constable or
deputy constsblc violating this Act shall be
punished by a floe of not less than $100 nor more
than $500.
Sec. 4. The provisions of this Article shall
apply only to counties having a population of
225,000 or over’according to the last preceding
federal census.
The language of article 45.22 indicates that its venue’provisions
are mdatory rather than l@zalssive , and requires that a suit on the
issuance of a bad check bll filed in the urecinct in which the offense
vas colpitted. See Allietl Artists Pictuies Corp. v. Transcontinental
Theatres, Texas.-&.- 57.1 S.U.2d 871, 872 (Tu. Civ. App. - Sastland
1978, writ diam’d); Attorcay General Opinion E-1026.
A change of venue us~lly means changing the place of trial from
one county to another. Chapter 31 of the Code ~of Criminal Procedure
provides for the change of venue to another county to secure an
impartial trial on motion of the court or on motion of the defendant
in either a felony caee or a misdemeanor case punishable by
confinement. See V.T.C.S, arta. 31.01; 31.03(a). The Texas statutes
do not provide%r change of venue in cases within the jurisdiction of
the justice courts. nalu!ly, cases which are not punishable by
confinement. However, the United States Supreme Court has held that
an individual has en inhe::unt right to a chsnge of venue if he demands
D. 832
Honorable Hike Drlscoll - ?‘lgc 4 (JM-190)
e jury trial cod if it spp~ars that an impartial jury and a fair trial
csnnot be obtained In the county. See Irvin v. Dowd. 81 S. Ct. 1639
(1961). At a time when the! Texas statute8 providing for a change of
venue were limited to felony caees vith one exception. a federal
district court held that, under the due process clause of the 14th
Amendment, It was the dut:r of the Texas judiciary to provide a fair
trial by an impartial jur:f to a person charged with a misdemeanor
punlsbable by confinement , even if to do so the court must grant a
change of venue that wntravenes state statutes. See Hisson V.
;a$~, 232 P.Supp. 539 0.D. Tex. 1964). aff’d. 364 F.2dl (5th Clr.
.
We believe that. if presented with the issue. the courts would
find that every person accused of a criminal offense has a
constitutional right to a t.rlal by an impartial jury regardless of the
punishment which may be ac:N,rded or the serious or petty nature of the
offense. See also Tex. Coast. art. I, (10. It i# our opinloa that,
in the counties where it d.s applicable, article b5.22 fixes mandatory
venue for trial in the jmtice court in the precinct in which a Class
C Misdemeanor is comitted. We believe tbat the courts vould find
that a defendant who demands a jury trial has a constitutional right
to an impartial jury and 1:~ a change of venue if it is necessary for
that purpose.
In answer to the first part of your second question, it is not
proper for a justice of the peace in Harris County to accept a bad
check case when the offense did not occur within his precinct. Tbe
mandatory provisions of article 45.22, require that the complaint be
filed in the precinct where the offense occurred unless, of coarse,
the justice of the peace j.r. that precinct is disqualified. We answer
the last two parts of your second question in the affirmative. It is
proper for 8 justice