Untitled Texas Attorney General Opinion ( 1974 )

The Honorable W. G. Wood.s, Jr. Opinion No. H- 213
District Attorney
75th Judicial District Re:. Jurisdiction over the
P. 0. Box 431 offense of homicide by vehicle.
Liberty, Texas 77~575
Dear Mr. Woods:
You have asked our opinion on two questions which are:
“1. Does the District Court have any jurisdiction
to try an offense known as ‘Homicide by Vehicle’ which
is described in Vernon’s Ann. Civ. St. Art. 6701d, Sec.
50A?
“2. If your answer is in the negative, do the County
Courts or County Courts at Law have exclusive jurisdiction
of said offense? I:
Vernon’s Texas Civil Statutes, Article 6701d, 5 50A provides:
“(a) Whoever shall unlawfully and unintentionally
(with a conscious disregard for the rights of others)
cause the death of another person while engaged in the
violation of any State law br municipal ordinance applying
to the operation or use of a vehicle or streetcar or to
the regulation of traffic shall be guilty of homicide when
such violation is the proximate cause of said death.
‘l(b) Any person convicted of homicide by vehicle
shall be fined not less than Five Hundred Dollars ($500)
nor more than Two Thousand Dollars ($2,000), or shall
be imprisoned in the county jail not less than three (3)
p. 996
The Honorable W. G. Woods, Jr.‘;page 2 (H-213)
months nor more than one (1) year, or may be so
fined and so imprisoned; provided,. however, that such
person may be tried only upon indictment bv a grand
jury and may be tried only in the county where the
violation occurred. ‘I
This article is not expressly repealed by the new Penal Code, Acts 1973,
ch. 399, p. 991, Sec. 3; nor do we believe it is repealed by implication.
Compare Vernon’s Texas Penal Code, $ $19. 05 and 19. 07, but see Cooper
v. State, 8 S.W. 654 (Tex. Ct. App. 1888).
Vernon’s Texas Penal Code, § 12; 02, provides that II[ 01 ffenses are
designated as felonies or misdemeanors. ” A felony is defined as “an offense
so designated by law or punishable by death or confinement in a penitentiary, ”
§ 1. 07 ( a) (14), Vernon’s Texas Penal Code, and a misdemeanor is “an offense
so designated by law or punishable by fine, by confinement in jail, or by both
fine and confinement in jail. ” Vernon’s Texas Penal Code, 5 1. 07 (a)(21).
As the offense of homicide by vehicle is punishable by confinement in the
county jail rather than the penitentiary, it is clearly a misdemeanor.
Vernon’s Texas~ Code of Criminal Procedure, Article 4. 05 provides:
“District courts and criminal district courts
shall have original jurisdiction in criminal cases of the
grade of felony, and of all misdemeanors involving
official misconduct. ”
See also, Texas Constitution, Article 5, Section 8. Official misconduct involves
“unlawful behavior in relation to the duties of . . . office, willful in its character
~ . and includes any willful or corrupt failure, refusal or neglect of an officer
to perform any duty enjoined on him by law. ” Vernon’s Texas Civil Stautes,
Art. 5973; 5 39. 01, Vernon’s Texas Penal Code: Robinson v. State, 470 S.W.2d
697 (Tex. Grim. 1971); Craig v. State, 19 S.W. 504 (Tex. Ct. App. 1892). As
homicide by vehicle is neither a felony nor official misconduct, the district
court has no jurisdiction to try the offense.
p. 997
.- _.,
The Honorable W. G. Woods, Jr., page 3 (H-213)
Vernon’s Texas Code of Criminal Procedure, Art. 4.07 provides:
“The oounty courts shall have original jurisdiction
of all misdemeanors of which exclusive original juris-
diction is not given to the just&court, and when the
fine to be imposed shall exceed two hundred dollars. ”
Homicide by vehicle is a misdemeanor, exclusive original jurisdiction is not
given to thejustice court, and the fine which can be imposed is more than two
hundred dollars; therefore, exclusive original jurisdiction to try the offense
lies in the county court, and where appropriate,, the county court at law.
Since the offense may be tried only on indictment, the district court
will have first contact with a case involving homicide by vehicle, but after
receiving the indictment it should transfer th,e case to the appropriate county
court for trial. Article 21.26, Vernon’
s Texas Code of Criminal Procedure.
SUMMARY
The county court has exclusive jurisdiction to try the
offense of homicide by vehicle as defined in Vernon’s Texas Civil
Statutes, Article 6701d, § 50A.
,
..
Attorney General of. Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 998