Untitled Texas Attorney General Opinion ( 1974 )

TWEAYTORNEY GENERAL
OF TEXAS
AUSTIN. Tms 78711
March 18. 1974
The Honorable V. Murray Jordan Opinion No. H- 262
District Attorney
198th Judicial District Re: Trial of marihuana possession
107 East Main Street offenses alleged to have been
Brady, Texas 76825 committed before the effective
date of the Texas Controlled
Dear Mr. Jordan: Substances Act.
You have asked whether the county court may try a case involving
the offense of possession of less than four ounces of marihuana when the
alleged offense occurred prior to August 27, 1973, the effective date
of the new Texas Controlled Substances Act.
Formerly, possession of any amount of marihuana was a felony.
Acts 1937, 45th Leg., ch. 169, p. 333 (formerly, Vernon’s Texas Penal
Code, Art. 725b). From and after August’27, 1973, possession of
four ounces or less of marihuana is a misdemeanor. Texas Controlled
Substances Act [hereinafter referred to as the Act], Vernon’s Texas
Civil Statutes, Article 4476-15, Sec. 4.05. Offenses committed before
August 27, 1973, but tried after that date are controlled by Sec. 6.01 of
the Act which provides in part:
“(a) Except as provided in Subsections (b) and (c) of
this section, this Act applies only to offenses committed
on and after its effective date, and a criminal action
for an offense committed before this Act’s effective
date is governed by the law existing before the effective
date, which law is continued in effect for this purpose,
as if this Act were not in force. For purposes of
this section, an offense is committed on or after the
effective date of this Act if any element of the offense
occurs on or after the effective date.
,I
. . .
p. 1227
The Honorable V. Murray Jordan, page 2 (H-262)
“(c) In a criminal action pending, on appeal, or
commenced on or after the effective date of this
Act, for an offense committed before the effective
date, the defendant, if adjudged guilty. shall be
assessed punishment under this Act if he so elects
by written motion filed with the trial court re-
questing that the, court sentence him under the pro-
visions of this Act. I’
Although Sec. 6.01(c) has been declared unconstitutional insofar
as it applies to actions in which a conviction was being appealed on
or after August 27, 1973, the provisions of the section relating to
actions awaiting trial on the effective date of the Act were not
affected, Ek parte Giles, 502 S.W.2d 774 (Tex. Crim. App. 1973).
Thus. pre-August 27, offenses are to be tried under the old
felony statute, but the potential punishment may be .of either ,felony
or misdemeanor status, at the option of the defendant. If ths quantity
involved is four ounces or less, and if the defendant elects to be
sentenced under the provisions of the new Texas Controlled Substances
Act, any conviction necessarily is a misdemeanor conviction. Jones
v. State, 502 SW. 2d 771 (Tex. Crim.App.: 1973).
The county courts have original jurisdiction of ,misdemeanors
in which the potential punishment exceeds a fine of two hundred dollars.
Vernon’s Texas Code of Criminal Procedure, Article 4.07. District
courts have original jurisdiction in felony cases. Texas Constitution,
Article 5, Sec. 8; Vernon’s Texas Code of Criminal Procedure,
Article 4. 05.
A marihuanapossession offense alleged to have occurred prior
to the effective date of the Texas Controlled Substances Act must
be treated as a felony unless and until the defendant elects to be
sentenced under the provisions of the Act.
Although the Court of Criminal Appeals has not yet indicated
whether the jurisdiction of the district court is always exclusive in
pre-August 27 marihuana possession cases, it has held that the
district court retains jurisdiction even when a motion to be sentenced
under the new Act has been filed prior to trial. Jones v. State, supra.
p. 1228
The Honorable V. Murray Jordan, page 3 (H-262)
Since, the district court is the court in which the motion must
be filed, and as Sec. 6.01(c) requires the motion to be filed in the
trial court, we believe that the Act contemplates trial of pre-August 27
offenses in the district court.
Another factor leading to the conclusion that the district court is the
proper court in which to prosecute these cases, is the inability of the
county court to enter a felony conviction. There is a possibility that
the defendant will not elect to proceed under the new Act or if he has
filed an election to so proceed, there is a possibility that his motion
may be withdrawn. If a felony conviction must be entered, it is
necessary that the case be in the district court.
Although we cannot say categorically that a misdemeanor conviction
for a pre-August 27 marihuana possession offense entered by a county
court would be invalid in all cases, it is our opinion that prudence and the
language of the statute indicate that these cases be tried in the district
court.
SUMMARY
Trial of marihuana possession offenses alleged
to have been committed prior to August 27, 1973,
should be in the district court.
Very truly yours,
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1229