Untitled Texas Attorney General Opinion ( 1947 )


Menu:
  •                                                              R-481
    Hen; SamB, Ball
    County Attorney
    H&rrison Cbunty
    Marshall, Texas
    -In 18SS the County Commiaaionerat
    Court of HarrlcsonCounty.,Texea, passed
    an order fixing the terms of hp&dI.ng
    eountr sourt fa thir ocEuatypr'971tbkbw
    that auoh tars8 might be held begiting
    on the firat Mondays in Jamary, March,
    May, July, September, November and ex-
    tendiag sight weeks froa eueB dates,. No
    other brd:ersiace 16199meeee``$ol&am
    been paaasd by suoh court uatI.1~
    rester-
    day5 Xay 12, 1947, the ~;````Isei.onerer'
    Court paaea~ an order on the aubjeot$,a
    OOpJrsr wiiieb$8 atteshrd har.toa
    *Reoeatly plmr Qf guilty w%m as-
    cepted hy i&o Cmmty Judge and peaaltiss
    assers04~ one @a April lo,,1941 and the
    other oztA@l    26$ $?47r Yotiens for new
    trial were filed iraataL of these 08888
    aad grasted by the court on other grounds,
    but ia srah ease the attorney reprsuntr
    ing the dsfandant  arrez%ad that the oow
    viationn w~r(l*ull aad veld beruse   tk@re
    vati a~ term or aourt     uakdor thr   law at    the
    tiniesof tb6 ourt accepting tha plea*.,
    He somad not, fse that he would oontlnoleto
    raise the peiat until the iasm WBS $quare-
    ly jbiglsd,a@ ‘ISthemtare nqusst ths op-
    IAiOb ab 3     &wprxtmmt a@ tiewhotko~ the
    ple$# at 3 1%~ mertiorur~d rbwa  wore lyal.
    In ether mrdl+ ths &tommy wys that ua-
    id.1the Grm&rki.anarr~ Qovrrt permd a aiew
    rrdor,   HQT!C&W~Oeubty way .ahdOSthe           gOa@P
    a1 piwvi*``onr        8tatuter RB ,Cal;rtLtu-
    Of the
    tiob# a#   that Ramiron Ccuatg court *a#
    Don, Sam B, Hall - Page 2
    only in legal term time for three weeks be-
    ginning on the first Monday in February,
    May, August and November. He further says
    he has doubt as to whether the present Com-
    missioners' Court oan do anything to reotlfy
    the situationuntil additionalLegislative
    provision ie made ror Harrison County.
    ”
    *   D   *   .
    "By Virtue 61 Article    5, Se&ion 22 of
    the Constitutionwhioh authorizes the Legie-
    lature to change the juriedlotionof oounty
    leture
    courts, the Lsgi8lature seeinsto hare peered
    three aote making muoh ohanges. In 1011 thr
    County Court we8 deprived of jurlrdiotlonin
    oivil eaaam by Acts or 1911, pa 90. '(3~
    Art. 1970-214,V. A. C, 9.) In 1913, this
    law was amended solnewhet   by Aots 61 1913, p.
    103, By Seotion 7 or the 1913 sot, it was
    provided 'The oounty aommissionere~court of
    said county may hereafter fix the terms of
    said court whenever it may be deepledae@os-
    sary.' (See Art, 1970-223,V.A.C.3. Both
    the 1911 and 1913 Acts sabm t0 have 1ncorpor-
    ated a general repealing olause: 'That all
    laws and parts of laws in oonflict herewith
    be and the aame are hereby repealedit (Art.
    1970-217,V.A.C,S,)
    "In 1927 the 40th Legislaturepassed
    the following:
    'SF%, 1, Hereafter the County Court of
    Harrison County, Texas, shall have the same
    mtion        and shall be subject to tpr;y
    provisions as County Courts aenerally h    Rh-
    out the State, under the Constitutionand Gen-
    era1 Laws of the State of TexasO1
    "Section 2 of this Act conformed the jur-
    isdiction of the District Court of Harrison
    County to the changes made in jurisdiction
    made in the County Court. Se&ion 3 repealed
    all conflioting lek and partsol laws. This
    measure was ef'fectireMaroh 16, 1927,
    "It is asserted that under the reason-
    ing of the Court of Criminal Appeals in the
    Hon. SalaB. Hall - Page 3
    case of Smith v. State, 183 S. W, 26,
    175, all judgments o? aonviotionentered
    Kthe Harrison County oourt on any day
    not during the term of the oourt as fixed
    by the Constitutionand grneral statutes,
    are void.
    “You may readily uee the lhportanoo
    and gravity o? the situation,and
    careful oomsidrrationand ahioe   WK.
    very much approa1ated.v
    That part of Seotion 29 of Artiale V of the
    State Constitutionpertinent hare Is as iellona~:
    W* * * Until otherwise provided, the
    terms of the County Court shall be held en
    the first Monday in February,Nay, August
    and November, and may re in in srrsiom
    three weeks.*           T
    Pursuant to the above quoted provlsi,onef
    the Constitution+Article 1962* 7. C. S+ was passed ia
    1885 ana is as roii0ws;
    “The aotiaaionars court maye at a
    regular tern thereor, by an order eatrr-
    ed upon its reaordsl provlda ror more
    terms of the aonnty aourt for the trans-
    aotion or oivil. criminal and probate
    business, and ffx the times at whiah eaah
    of the-four terms required by the Censti-
    tutionl and the terms exceeding four, if
    wf   shall be held, not to exceed six m-
    aua lg, ana may rir the length or each
    term” When the number of the term8 Of tke
    aouaty eourt has been fixed,,the oourt
    shall not ohange the oram? before one year
    rrom the date of entry of the original.or-
    der rixing such termab (Acts lgbSr pd 55)”
    Artiole 1961, V, C* S. Is a8 follswa:
    *The oounty oourt shall held at
    least rour terms for both civil and erlm-
    inal business annually, and such ether
    term each year as may bo fixed by the
    commissioner8oourt. After having fixed
    Ho&. aam B. Hall - Page 4
    the times and number or the ‘termsef a
    oounty court, they shall not change the
    sams until the expiratien or one year*
    Until, or unlrss otherwireprovided, the
    term of the eourty court shall be held
    on the first ?donday.lnFebruary,May
    August and November, and may remain In
    semion three wmJcao (Const.Amendment
    11383,art. 5, MC. 29)”
    Artlole 586, C.&P., provides that:
    Vach oounty oeurt shall held a
    team for orbhal   buaiikesaon the rlridi
    Monday in every aenth, or at suoh ether
    time as may have been fixed in aeeord-
    anon with laws”
    That part of Seatira 17 of Artlola V of the
    State Constitutionpertinent here ia am icll.ewrt
    “The Ownty Court ahall h&d a
    tom ror olriL bus%aarr at haat a``6
    in every two montha; and shall dlaposo
    of probate bualness, either In term
    tfma or vacation aa may be proridod by
    law, and aaia court rhall held a term
    ror arlmlnal business once in svrrf
    month a# may be provldod by law. a .”
    Insorar as the record reveala, the County
    Court or Harrison County has ne?er baoa divested or Jurla-
    aidion  ib arimlml aasalr.
    We hnew of no law whloh prohibits a term er
    county court la criminal matters being dirferent from tha
    term or oourt in oivil.aaws. On the oontrary, in risw.
    of Article 586 C,C,P,, and Seetioa 17 of A&b 
    QI supra
    it olearly indicates that there may be differeat terma 11
    oounty court for or@bal amd eiril QPSO~.
    The sass of Smith v. State, 183 81 W. (2&j
    175, was one where the county aourt of Marion County had
    been direstad, of jurladioticdn in IL897 ir orklsL1 oasmb
    Juriediotion’1nsuch aasea was re8trred to the oaunty
    owrt in 193$i,but the Commissioners’Court or said roun-
    ty had never passed any order setting the torma of the
    oourt subsequentto auoh restoratira.
    .’   -
    ‘.
    Hen. Sam B. Hall - Page 5
    The oourt held thnt the only term of county
    court in Marion County wae that set by Section 29 of
    Artiole V, aupra, of the Ooraetituflon,whioh shall be-
    gin on the firet Mondays in February, May, Au@& and
    November, and may remain in session three weeks. The
    court held further that the plea of guilty having been
    made ana judgirsntentered on June 24, 1944, was not
    during a term of court a8 fixed by the Constitutionand
    the Legislatureand thexefore,having bsen entered
    while “he court was in vaoation,wae void.
    The facts in the iaafant
    different from those in the
    ty Court or Hsrrlara;P County                                    ,.
    jurledlationin orimiaal
    stitution and the srtmtutes,  the
    Harrison County pro+Lded ltblgQ% tbrt ithstalbne* Om-
    ty oourt might be held the first MWdafa Sa ifa
    March, May, July, Sbptember aad NoVombW and
    eight weeks rrom suoh dates. Bvea thhoughthe QeWr
    Oourt had been divesteifof civil matters aaS d891y)rt&a
    terms of ,countgcourt in oivil matter@ may hav+ Berm
    changed,”the term8 or the county o~urt of
    ty ro ~.tirU.nal cases remains as tit by
    OXB!J$uuti“.until changed                                 ;
    aotionr This beiag true,                                  .’L
    Harrison County in criminal cases
    Monday in Maroh and continue& for eight reekn fP&# auuh
    date*
    Therefore, in view .oithe iora eimg
    are respectfullyadvised that it ia the Op!uiW T~;&ri#
    Department that the pleas ef guilty sa&sre(:oh
    lOth, 1947, and April 26th, 1947, were both had“pB term
    time, and therefore valid in this rwpwot4
    Since   the
    riaoa Oounty in
    of coylty court
    days in January, Marob, May, JuXy,,SM$tsmWF
    and November, and ~rtaaQin(: eight weah Pf@a
    such dates, and $urtheF# since the t~ma of
    said County Court heve aovlbrMaa @lunged i%
    . .. _
    Hon. Sam B, Hall - Page 6
    orlminal oamsg pleas of guilty entered OQ
    April lOth, 1947, and April 26th, 1947, were
    both had in term time; therefore valid in
    this m&pest, Art, 1962 V, C. S.; Art 589
    c. co PO
    Yours very truly,
    ATTORNEPGENERALOP TEXAS
    BAoWR
    ATTORNEY GENERAL
    

Document Info

Docket Number: V-259

Judges: Price Daniel

Filed Date: 7/2/1947

Precedential Status: Precedential

Modified Date: 2/18/2017