Judges: DAN MORALES, Attorney General of Texas
Filed Date: 1/20/1994
Status: Precedential
Modified Date: 7/6/2016
Honorable David H. Cain Chair Committee on Transportation Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910
Re: What court is the proper forum for prosecutions brought under House Bill 1084, Acts 1993, 73d Leg., ch. 88, at 175-76 (RQ-629)
Dear Representative Cain:
You have requested our opinion regarding the proper forum for prosecution of the offense of "overtaking and passing a school bus." The 73rd Legislature amended section 104 of article 6701d, V.T.C.S., to increase the penalties attached to this offense, which hitherto had been limited to "a fine of not less than $50 nor more than $200." Acts 1993, 73d Leg., ch. 88, § 1, at 175-76. As of September 1, 1993, section 104 prescribes the following penalties:
(c) An offense under this section is punishable by a fine of not less than $200 and not more than $1,000.
(d) On conviction of a person of a second or subsequent offense under this section, the court may order that the person's driver's license be suspended for a period of up to six months beginning on the date of conviction. In this subsection, "driver's license" has the meaning assigned by Section 1, Chapter 173, Acts of the 47th Legislature, Regular Session, 1941 (Article
6687b , Vernon's Texas Civil Statutes).(e) If a person fails to pay a previously assessed fine or costs on a conviction under this section, or is determined by the court to have insufficient resources or income to pay a fine or costs on a conviction under this section, the court may order the person to perform community service. The court shall set the number of hours of service under this subsection.
You ask whether prosecutions under the newly amended section 104 should be initiated in a justice court or a county court. For reasons to be discussed, infra, we initially consider only "first offense" violations brought under the newly amended section 104.
Article
Justice of the peace courts shall have original jurisdiction in criminal matters of misdemeanor cases punishable by fine only, exclusive jurisdiction in civil matters where the amount in controversy is two hundred dollars or less, and such other jurisdiction as may be provided by law. Justices of the peace shall be ex officio notaries public.
Tex. Const. art.
In 1991, section
Article
This result was recently affirmed in Attorney General Opinion
Attorney General Opinion
Thus far, we have limited our inquiry to "first offense" prosecutions under newly amended section 104. Subsection (d) thereof provides that, for "a second or subsequent offense . . . the court may order that the person's driver's license be suspended for a period of up to six months beginning on the date of conviction."
In Ex parte Morris,
Analogously, the court's authority to order the suspension of a defendant's driver's license, on conviction of a "second or subsequent offense," removes from justice court jurisdiction all second and subsequent offenses brought under section 104. As we have noted, article V, section 19 authorizes the legislature to grant to a justice court "such other jurisdiction as may be provided by law." Although the legislature could, under this provision, authorize justice court jurisdiction over offenses which carry a maximum punishment of both fine and license suspension, it has not done so. Thus, while first offense prosecutions under section 104 may be commenced either in justice or county court, any prosecution of a defendant who has been once convicted under that statute may be initiated only in county court.
It might also be argued that subsection (e) permits an "additional punishment" — community service — which would deprive a justice court of jurisdiction to hear any prosecution brought under section 104. In our opinion, such reasoning is fallacious. Subsection (e) prescribes not an "additional," but an "alternative," punishment. Unless such an alternative is available, a court's imposition of a fine under section 104 would be ineffectual in accomplishing the state's interest in punishment and deterrence. Furthermore, the same session of the legislature which amended section 104 specifically authorized the imposition of "community service" by a justice of the peace.
House Bill 930, Acts 1993, 73d Leg., ch. 298, at 1371-72, which adds section 45.521 to the Code of Criminal Procedure, provides for the imposition of community service by "a justice or judge" whenever a defendant has failed "to pay a previously assessed fine or costs, or who is determined by the court to have insufficient resources or income to pay a fine or costs." House Bill 930 is clearly intended to be applicable to those courts which specialize in "fine only" penalties. Indeed, the title of the bill indicates that it relates "to the authority of a justice of the peace or municipal judge to order community service in satisfaction of fine or costs and to the justice precinct in which persons may be tried or in which a constable may be allowed a fee." The "community service" language adopted in House Bill 930 is virtually identical to that used in subsection (e) of newly-enacted section 104. The two statutes, enacted by the same session of the legislature, are in parimateria with each other. In our opinion, legislative authority to prescribe "community service" as an alternative punishment in certain instances is clearly contemplated by that portion of article V, section 19, which permits the legislature to confer upon justice courts "such other jurisdiction as may be provided by law."
In summary, we conclude that a defendant who has not been previously convicted of the offense of "overtaking and passing a school bus," as described in section 104 of article 6701d, V.T.C.S., may be prosecuted either in the justice court precinct in which the offense occurs, or, subject to the limitations noted, supra, and described in Attorney General Opinion
Very truly yours,
DAN MORALES Attorney General of Texas
JORGE VEGA First Assistant Attorney General
WILL PRYOR Special Counsel
RENEA HICKS State Solicitor
MADELEINE B. JOHNSON Chair, Opinion Committee
Prepared by Rick Gilpin Assistant Attorney General
[1] Under article
[2] Opinion
[3] The criminal jurisdiction of a constitutional or statutory county court may be limited by special statutory provisions applicable to particular counties, as described in Attorney General Opinion
[4] To the extent that section
[5] The concurrent jurisdiction of a municipal court is limited to offenses arising under state law in which the maximum punishment is by a fine of not more than $500. Since municipal courts are not among those specifically established by the constitution, the legislature is free to impose restrictions upon their jurisdiction, and, in our opinion, has validly done so.
[6] You do not ask, and we do not consider whether, in order to permit prosecution under subsection (d), the first conviction must have occurred after the effective date of House Bill 1084.