The opinion
I
TIE A’ITORNEY GENERAL
OF TEXAS
AUSTIX. ‘lkXAS 78711
The Honorable Tim Curry Opinion No. H-1026
District Attorney
Tarrant County Re: Venue of criminal
Fort Worth, Texas 76102 proceedings in the jus-
tice court.
Dear Mr. Curry:
You have requested our opinion concerning the venue of
criminal proceedings in justice courts in counties of over
225,000. In essence, your questions are:
1) Does article 4.12 or article 45.22 of the
Code of Criminal Procedure control the
venue in such cases, and is the applicable
article mandatory or directory?
2) Is it procedurally correct for a police
officer to file a speeding case under
State law in the precinct in which the
alleged offense occurs?
3) Must a magistrate transfer a case to a
proper court when he is apprised that his
court does not have venue or when a plea
of privilege (oral or written) is filed
and the basis thereof proven?
4) What penalties could be imposed upon a
magistrate who tries a case or cases des-
pite proof that his court does not have
venue; specifically, may such action form
the basis for a removal action?
Article 4.12, Code of Criminal Procedure, establishes
justice court venue generally. Article 45.22, Code of Crim-
inal Procedure, provides:
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The Honorable Tim Curry - Page 2 (H-1026)
Sec. 1. No person shall ever be tried in
any justice precinct court unless the of-
fense with which he was charged was com-
mitted in such precinct. Provided, however,
should there be no duly qualified justice
precinct court in the precinct where such
offense was committed, then the defendant
shall be tried in the justice precinct
next adjacent which may have a duly qual-
ified justice court. And provided fur-
ther, that if the justice of the peace of
the precinct in which the offense was com-
mitted is disqualified for any reason for
trying the case, then such defendant may
be tried in some other justice precinct
within the county.
Sec. 2. No constable shall be allowed
a fee in any misdemeanor case arising in
any precinct other than the one for which
he has been elected or appointed, except
through an order duly entered upon the
minutes of the county commissioners court.
Sec. 3. Any justice of the peace, con-
stable or deputy constable violating this
Act shall be punished by a fine of not less
than $100 nor more than $500.
Sec. 4. The provisions of this Article
shall apply only to counties having a popu-
lation of 225,000 or over according to the
last preceding federal census.
Article 45.22 is controlling in counties of over 225,000,
as specific venue statutes control over general provisions.
Trees v. State, 152 S.W.Zd 361 (Tex. Crim. App. 1941). Fur-
thermore, the penalty provision of article 45.22 clearly in-
dicates that its requirements are mandatory rather than di-
rectory. Both article 4.12 and article 45.22 were said to
be unconstitutional in Attorney General Opinion C-602 (1966).
See also Attorney General Opinions V-496 (1948) and O-6940
--
(1945). In Bradley v. Swearingen, 525 S.W.Zd 280, 282 (Tex.
Civ. App. -- Eastland 1975, no writ), however, the court in-
dicated that article 4.12 was valid and that it believed
Attorney General Opinion C-602 was erroneously decided. In
light of that determination, we overrule Attorney General
Opinions C-602 (1966): V-496 (1948); and O-6940 (1945).
P. 4237
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The Honorable Tim Curry - Page 3 (H-1026)
Section 143 of article 6701d, V.T.C.S., provides that a
violation of speed laws on state highways constitutes a mis-
demeanor punishable by a fine of one dollar to two hundred
dollars. Accordingly, in counties of 225,000 or more, article
45.22 generally requires a police officer to file a speeding
case under State law in the precinct in which the alleged of-
fense occurs.
Your third question concerns the appropriate action on
the part of a magistrate who is apprised that his court does
not have venue. We have discovered no authority for the
transfer of proceedings in such circumstances. See Sims v.
State, 121 S.W.Zd 350 (Tex. Crim. App. 1938); Ta-r v. State,
197 S.W. 196 (Tex. Crim. App. 1917). Accordingly, in such an
instance a magistrate should dismiss the action, and it should
be refiled in the proper precinct. Trees v. State
Romay v. State, 442 S.W.Zd 399 (Tex. Crim. App. 19i9FEAF
v. State, 385 S.W.Zd 260 (Tex. Crim. App. 1964).
Your final question involves the possible sanctions for
a magistrate's refusal to observe the provisions of article
45.22. That article provides for a fine in such an instance.
Furthermore, a corrupt and willful violation of article 45.22
could constitute official misconduct and subject an offending
magistrate to removal. V.T.C.S. arts. 5970 - 5997; see
Brackenridge v. State, 11 S.W. 630 (Tex. Civ. App. 1889, no
writ).
SUMMARY
Article 45.22, Code of Criminal Procedure,
controls the venue of actions in justice
precinct courts in counties of over 225,000.
Its provisions are mandatory, and thus, an
officer should file a speeding case under
State law in the precinct in which the al-
leged offense occurs. A case filed in the
wrong precinct should be dismissed. A magis-
trate who refuses to observe the provisions
of article 45.22 is subject to fine under
that article, and a corrupt and willful vio-
lation of article 45.22 could constitute of-
ficial misconduct and subject the magistrate
to removal. Attorney General Opinions C-602
(1966); V-496 (19481; and O-6940 (1945) are
overruled.
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The Honorable Tim Curry - Page 4 (H-1026)
Attorney General of Texas
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
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