Attorney General Opinion JM-0190

. . JIM MAlTOX Attorney General Sucmme Cowl Bulldlno - P. 0. Box 12545 AUS!h TX. 75711. ?%a 5121475-2501 Telex SWS74~1367 Telecopier 51214750266 714 Jwkson. Suits 700 Dallar. TX. 752024506 21417428844 4S24 Albsfi. Ave.. suite 180 El P880, TX. 7SSG52793 s1m34s4 ml fexss. sulle 700 HPUS~D~. TX. 77002.3111 713mMSe6 W5 Broadwsy. Suile 312 Lubbock. TX. 7S401.347’2 aow-747~5239 43C4 N. Tenth. Suit0 B MeAllen. TX. 7SYmlSa5 5wS524547 ,- 200 Mm Plu*. suite 400 Ssn Anmnlo. TX. 782052797 512l225-4181 An Equal OpporWW/ *fflrm*tlvo ActIon Employ*r The Attorney General of Texas August Eonorable Hike.Drim:oll Eerrie County Atto::uey 1001 Preston, Suit! 634 Houston, Texas 7’1002 Dear Mr. Driscoll: You have asked the 13, 1984 Opiniw No. m-190 Re: Venue of criminal proceedings in Justice Courts folloving questions relating to the venue of certain criminal prxeedings in the justice courts in Earris County: 1. Dues article 4.12 or article 45.22 of the Code of *:riminal Procedure control the venue of criminal charges filed pursuant to section 32.41 of the I’mal Code ‘ia the justice courts of Harris County, tmd is the applicable article, if any. mandatory or directory? 2. Is it proper for a:justice of the peace in Eartie Ccunty to do any of the following: , ~.‘! -il)“‘A.ccept a-bad check charge/complaint fdi an :, -offense wh%chth: occurred within ‘Barris County but not withim his precinct? ’ ‘.:. ‘.~ - (2) :&wept a’bad recheck charge/complaint for ‘an r ,offense~%hich occnrred ‘with%% his precinct when defendautresides in, Barris County but not within his prec:!.nctP ’ (3) rLccept a bad check charge/complaint for an offense which occurred within his precinct but .defandarr: resides in another county? .t Your request for an opinion is accompanied by a brief which also dfacuases the eonatitutionality of .artlcles 4.12 and 45.22. Article 45622 of. the Code of Criminal Procedure determines the venue of criminal charge8 filed in the justice courts of Darris County for ~the offense of issuing a bad check under sectlon 32.41 of the Penal Code, and its provisions are mandatory. Except as provided if a justice of the pcwce ie disqualified. it is not proper for a justice D. 830 Honorable ,Mike Drincoll - :?age 2 (JH-190) of the peace in Harris Cowty to accept such a bad check case when the offense does not occur rdthin his precinct, but it is proper, regardless of the residema, of the defendaut. vhm the offense does occur within his preclact. Section 32.41 of the Penal Code lists the elements that constitute the offowe of issuance of a bad check and provides that such an offense is a Class C Msdewanor. A Class C Misdemeanor is punishable only by a fins not to exceed $200, vhich punishment conforms to the constitutional and l tatutory jurisdiction of the justice court in this stwe. Article 0, rection 19, of the Texan Constitution provides in ptrt that Justices of the :Peace shall have jurisdiction in criminal matters >f all cases where the penalty or fine to be woei by law may not be more than for two hundred dollarr . . . . Article 4.11 of the Code of Criminal Procedure specifies that justices of the peace have jurisdiction in criminal cases where the fine to be imposed by law may not exceed $200. Accordingly, the offense of issuance of a bad check under eection 32.41 is vithin the subject matter jurisdiction of the justice courts. Venue does not lisdt or affect the jurisdiction that is prescribed by the constitwion and by statute for the justice court. “Venue ,” as applied to ,criminal cases. means the place in which prosecutions are to begin, uhile “jurisdiction” means the power of the court to hear and determiuo the case. The terms are not syoonymotiS~ See Martin v. State, 385 8.U.2d 260 (Tax. Grim. App. 1964); Bradley v. saringen. 525 S.W.Zd 28Cm (Tex. Civ. App. - Eastland 1975. no writ); Attorney General Opinion D-1026 (1977). The Texas Constitution gives the legielaturc pouer~to fir.venue and the courts pouer to change venue in the manner providedby law. Article III, section 45. of the constitution atates that ,~:he “power to change the venue in civil and criminal cases shall be vwted in the courts, to be exercised in such manner as shall be proviclcd by law; and the Legislature shall pass laws for that puipose.” We believe that articles 4.12 and 45.22 are merely venue requirements for criminal cases within the jurisdiction of the justice courts , including the off,mse of immuing bad checks under section 32.41 of the Penal Code. Article 4.12 establishes justice court venue for misdemeanor cases ucrpt to the extent that, in each of the several counties in the state which have a population of at least 225,000. article 45.22 fires venue in the justice courts. Hence article 45.22, rather ttun article 4.12. is applicable in Earris County. E-1026. See Bradley v. lpearingen, B; Attorney General opinion Article 45.22 prcvides as follows: 0. 831 Ilonorable Mike Driscoll - Page 3 (Jn-190) Sec. 1. No p’crson shall ever be tried in any justice precinct court unless the offense with which he was ‘::larged was colPlnitted in such prscinct . Provided, however, should there be no duly qualified justice precinct court in the precinct where llulcb offense was emitted, then the defendant ohall be tried in the justice precinct next adjacent which ry have a duly qualified justice court. And provided further, that if the justice of the peace of the precinct in which the offense vaa~comitted is disqualified for any reason for trying the case, then such defendant may t,r, tried in some other justice precinct within r:he county. Sec. 2. No constable shall be alloved a fee in any misdemeanor t:rise arjsing in any precinct other than the one for which he has been elected or appointed, exccrt through an order duly entered upon the mlnut’es of the county commissioners court. Sec. 3. Any justice of the peace. constable or deputy constsblc violating this Act shall be punished by a floe of not less than $100 nor more than $500. Sec. 4. The provisions of this Article shall apply only to counties having a population of 225,000 or over’according to the last preceding federal census. The language of article 45.22 indicates that its venue’provisions are mdatory rather than l@zalssive , and requires that a suit on the issuance of a bad check bll filed in the urecinct in which the offense vas colpitted. See Allietl Artists Pictuies Corp. v. Transcontinental Theatres, Texas.-&.- 57.1 S.U.2d 871, 872 (Tu. Civ. App. - Sastland 1978, writ diam’d); Attorcay General Opinion E-1026. A change of venue us~lly means changing the place of trial from one county to another. Chapter 31 of the Code ~of Criminal Procedure provides for the change of venue to another county to secure an impartial trial on motion of the court or on motion of the defendant in either a felony caee or a misdemeanor case punishable by confinement. See V.T.C.S, arta. 31.01; 31.03(a). The Texas statutes do not provide%r change of venue in cases within the jurisdiction of the justice courts. nalu!ly, cases which are not punishable by confinement. However, the United States Supreme Court has held that an individual has en inhe::unt right to a chsnge of venue if he demands D. 832 Honorable Hike Drlscoll - ?‘lgc 4 (JM-190) e jury trial cod if it spp~ars that an impartial jury and a fair trial csnnot be obtained In the county. See Irvin v. Dowd. 81 S.Ct. 1639 (1961). At a time when the! Texas statute8 providing for a change of venue were limited to felony caees vith one exception. a federal district court held that, under the due process clause of the 14th Amendment, It was the dut:r of the Texas judiciary to provide a fair trial by an impartial jur:f to a person charged with a misdemeanor punlsbable by confinement , even if to do so the court must grant a change of venue that wntravenes state statutes. See Hisson V. ;a$~, 232 P.Supp. 539 0.D. Tex. 1964). aff’d. 364 F.2dl (5th Clr. . We believe that. if presented with the issue. the courts would find that every person accused of a criminal offense has a constitutional right to a t.rlal by an impartial jury regardless of the punishment which may be ac:N,rded or the serious or petty nature of the offense. See also Tex. Coast. art. I, (10. It i# our opinloa that, in the counties where it d.s applicable, article b5.22 fixes mandatory venue for trial in the jmtice court in the precinct in which a Class C Misdemeanor is comitted. We believe tbat the courts vould find that a defendant who demands a jury trial has a constitutional right to an impartial jury and 1:~ a change of venue if it is necessary for that purpose. In answer to the first part of your second question, it is not proper for a justice of the peace in Harris County to accept a bad check case when the offense did not occur within his precinct. Tbe mandatory provisions of article 45.22, require that the complaint be filed in the precinct where the offense occurred unless, of coarse, the justice of the peace j.r. that precinct is disqualified. We answer the last two parts of your second question in the affirmative. It is proper for 8 justice <If the peace to accept a bad check charge/complaint in both of those situations. Tbe defendant’s residence ie not significrpt where article 45.22 determines venue. In each of the last two situations, the offense occurs vfthin the precinct of the justice o:F the peace in question and venue is proper in that precinct. Tbe answers to the Ilpecific questions which you asked about articles 4.12 end 45.22 io not appropriately include enswers to unrelated questions and therefore , we express no opinion on AUK other potential constitutlonel ismes discussed in your brief. SUHMARY Article 45.22 3f the Code of Criminal Procedure is applicable jn Harris County and provides mandatory venue requirements for charges filed in the justice cow(:a for issuing a bad check under p. 833 Hoaornble Mike Driscoll - Piige 5 (M-190) section 32.41 of the Penal Code. Except *a provided if n justice of the peace is disqualified, vwue for misdemeanors in the justice courts it. Rarris County is limited to the precinct lo wbic’n the offense occurs, regardless of the residence of the defendsnt. vJ I n MATTOX Attorney General of Texas TOM GREEN First Assistant Attorney General DAVID R. RICHARDS Executive Assistant Attorn?:? General Prepared by Nnncy Sutton Assistant Attorney General APPROVED: OPINION COI4WlTEE Rick Gilpin. Chairman David Brooks Colin C*rl Susan Gnrrison Jim Moellinger Nancy Sutton