Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
F~hruary 21, 1986
JIM MAlTOX
Attorney General
Supreme Court BulldlnO Eonorable Dale Hanma Opinion No. JM-435
P. 0. Box 12548 Johnson County Attwmey
Aus?,“, TX. 78711.2548 1st Floor, Courthouse Re: Responsibility for notlficatlon
51214752501 Cleburne , Texas 76031 of defendants In criminal cases
Telex SlOI874~13B7
Telecopier 5121475-0286
Dear Mr. Hauna:
714 JacksOn. BUM 700 YOU ask the fallowing questions about notification of misdemeanor
Dallas, TX. 752024508 defendants of cerl.ain criminal proceedings:
214i742.8944
1. Vhoae responsibility is it to notify
4B24 Alberta Ave., Suite 160 defendauta and/or defense attorneys of criminal
El Paso. TX. 799052793 miademerluor arraignment. pre-trial, and trial
91Y533-3484 setting:, in the district court, i.e., court
secretary, prosecutor, district courzerk, or
1001 Texas. Suite 700
sheriff’s office?
Houston. TX. 77002.3111
71312235886 2. ‘3oea the district court have jurisdiction
to order the prosecutors office to notify criminal
defendants of arraignment, pre-trial, and trial
606 Broadway, Suite 312
Lubbock. TX. 79401.%79 settings?
8oBl747.523B
3. Is a prosecutor ethically prohibited by
disciplinary rule DR-7-104 from notifying
4303 N. Tenth, Suite B
defendants of such arraignmtnt, pre-trial. or
McAllen. TX. 78501-1585
512lW2-4547 trial settings after they have employed counsel?
Tour request letter poses the question primarily as a choice
200 Main Plaza, suite 400 benreen the diatl:j.ct court and the prosecutor. We note, however, that
San Antonio, TX. 782062797
jurisdiction over misdemeanor cases is divfded between the district
512!225-4191
courts and the county courts according to the nature of the offense.
See Code Grim. Pcoc. arts. 4.05, 4.07. In Johnson County, the county
An Equal OPportUnitYl zrt and the dil,trict court have concurrent jurisdiction over certain
A,,,rmati”e Action Employer misdemeanor cases. See V.T.C.S. art. 1970-335. $2. See generally,
Regian v. Sowell~, 53S.W.2d 175, (Tex. Civ. App. - Waco 1976, writ
ref’d n.r.e.). %rctlon 3 of article 1970-355 provides that
[t]he District Clerk of Johnson County shall
continu’c to perform all the clerical functions of
and for the County Court of Johnson County,
Insofar as all matters and csuses over which the
p. 1990
Honorable Dale Hanna - Page :! (JM-435)
said District Court and county Court have
concurrent jurisdiction, as hereinabove set out.
Consequently, we address your question solely as one between the
prosecutor’s office and the court which properly has jurisdiction over
the misdemeanor case in question.
Article 28.01 of the Texas Code of Criminal Procedure provides
for pre-trial hearings as follows:
Section 1. The court may set any criminal case
for a pre-trial%aring before it is set for trial
upon its merits,-$d direct the defendant and his
attorney, if arp of record, and the State’s
attorney, to appesr before the court at the time
and place statea in the court’s order for a
conference and ‘Graring. The defendant rrmat be
present at the arraignment, and his presence is
required during any pre-trial proceeding. The
pre-trial hearinS shall be to determine any of the
following matters:
(1) Arraignwnt of the defendant, if such be
necessary; and appointment of counsel to represent
the defendant, i:i such be necessary;
(2) Pleadings of the defendant;
(3) Special pleas, if any;
(4) Excepti’>us to the form or substance of
the indictment or information;
(5) Motions for continuance either by the
State or defenclant; provided that grounds for
continuance not existing or not known at the time
may be presented ,and considered at any time before
the defendant announces ready for trial;
(6) Motions to suppress evidence -- When a
hearing on the motion to suppress evidence is
granted, the ccurt may determine the merits of
said motion on the motions themselves, or upon
opposing affidtwits, or upon oral testimony,
subject to the discretion of the court;
(7) Hotionc for change of venue by the State
or the defendslt; provided. however, that such
motions for change of venue, if overruled at the
p. 1991
Ronorable Dale Banns - Page 3 (a-435)
pre-trial hearing, may be renewed by the State or
the defendant during the voir dire examination of
the jury;
(8) Discovery;
(9) Entrapment; and
(10) Hotlon for appointment of interpreter.
Sec. 2. When a criminal case is set for such
pre-trial hearing, any such preliminary mattars
not raised or filled seven days before the hearing
will not thereaj’ter be allowed to be raised or
filed, except by permission of the court for good
cause shown; Er:3”ided that the defendant shall
have sufficient notice of such hearing to allow
him not less thh 10 days in which to raise or
file such prelim:&ry matters. The record made at
such pre-trial t;aring. the rulings of the court
and the exceptions and objections thereto shall
become a part of the trial record of the case upon
its merits.
Sec. 3. The notice mentioned in Section 2
above shall bci.f flcient if given in any one of
the following wap:
(1) By announcement made by the court in open
court In the presence of the defendant or his
attorney of recocfa;
(2) By peracnal service upon the defendant or
his attorney of record;
(3) By mail to either the defendant or his
attorney of record deposited by the clerk in the
mail et least alx days prior to the date set for
hearing. If the defendant has no attorney of
record such notice shall be addressed to defendant
at the address ,shown on his bond, if the bond
shows such an a.ddress. and if not, it may be
addressed to cm! of the sureties ou his bond. If
the envelope wntaining the notice is properly
addressed, atamlbed and mailed, the state will not
be required to chow that it was received.
(Emphasis added: .
p. 1992
Elonorable Dale panna - Page 4 (311-435)
See generallg Barbee v. Stafc, 432 S.P.2d 78 (Tax. Grim. App. 1968),
cert. denied, 395 U.S. 924 ;1,969).
Section 1 of article 2!),01 states that the court shall direct the
defendant, his attornay, and the state’s attorney to appear at pre-
triel hearings. Article Zl8.01 also authorizes three methods of
notification: “[b]y announcement made by the court,” (2) “[bly
personal aervicil) ” or (3) [‘bjy mail . . . deposited by the clerk.” We
conclude that &is langua8e places the responsibility for notifying
defendants of pre-trial hearings upon the court rather than upon the
prosecuting attorney.
Other provisions in tlw Code of Criminal Procedure support this
conclusion and suggest that the court must also notify defendants of
trial settings. Chapter 2 of the code, articles 2.01 through 2.24,
sets forth the duties of magistrates , a term which includes county and
district court judges. Set Code Grim. Proc. ert. 2.09. These ducira
include the issuance of xi process Intended to aid In prevent1r.g end
suppressing crime. Id. a:%. 2.10. Article 2.21(a) of the Code of
Criminal Procedure provides3 for the general duties of court clerks as
follows:
Each clerk of the district or county court
shall receive an3 file all papers and exhibits in
respect to criminel proceedings, issue all process
in such csses, and perform all other duties
imposed upon then by law.
In contrast, the provisions of the code vhf& set forth the dutlex of
prosecutors, see arts. 2.01-2.08, neither require nor suthorize
district attorneys, count]’ attorneys. or criminal district attorneys
to issue or execute process. Consequently. the court, rather then the
prosecutor. has the reapo~~rribility to notify defendants of pre-trial
hearings and trial settings. -See Attorney General. Cpinion O-5694
(1943).
Your second question requires consideretlon of whether the court
holds the power to fulfil:l fta responsibility to notify defendants by
ordering the prosecutor’s, office to carry out these duties of the
court, a. by ordering the prosecutor’s offlce to execute process
issued by the court. AE indicated. the code imposes no duty on
prosecuting attorneys to uotlfy defendants of pre-trial proceediner
and trial settings. See Xncan V. State, 67 S.W. 903, 905 (Tex. Civ.
App. 1902, no writ); cf.‘ -- ?aulder v. Dill, 612 S.b.2d 512 ITex. Grim.
App. 1980).
t!oreover , the authority of the court to direct persona to serve
process depends primarily on the statutes vhicb djrect the method of
service. Article 2.13 of the Code of Criminal Prccrdure provides that
p. 1993
Honorable Dale Banns - Pago 5 (m-435)
every peace officer. as de,Eined in article 2.12. "shall execute all
lawful process issued to Mm by any magistrate or court." See also
Code Grim. Pro. art. 2.1(,. A prosecuting attorney is not incltided
within this definition ot "peace officer." The official duty to
execute service of process issued by a magistrate falls upon sheriffs.
See Code Grim. Proc. arte,. 2.12, 2.13; Eeary S. Wlller Company v.
-c. 452 S.W.2d 426 (Twt. 1970); Grass v. Grass. 608 S.W.2d 356
(Tax. Clv. App. - Dallas 1380, no writ); Cook v. Jones, 521 S.U.2d 335
(Tcx. Civ. App. - Dallas 1975, writ ref-'d n.r.e.); Attorney General
Opinion E-595 (1975). Although the court may direct persons other
than sheriffs to serve prwess in some circumstances, this authority
does not properly extend t#D prosecuting attorneys. Consequently, we
do not believe It is sppropriate for the court to order the
prosecutor's office to notify misdemeanor defendants of pre-trial
hearings and trial settings.
Tour final questiorl is vhether a prosecutor is ethically
prohibited from notifying misdemeanor defendants of pre-trial hearings
and trial settings by DR-"-104(A) of the disciplinary rules governing
the State Bar. V.T.C.S. .%rt. 320a-1, Title 14. Appendix A. art. 12,
18. Rule DR-7-104 states:
(A) During the course of his representation of
a client a 1awyc.r shall not:
(1) Conam.nicate or cause another to com-
municate on the subject of the representa-
tion with'?. party he knows to be represented
by 1awyc:r in that matter unless he has the
prior cor,sent of the lawyer representing
such other party or is authorized by law to
do so.
(2) Give advice to e person who is not
representc:d by a lawyer, other than the
advice to-secure counsel, if the interests
of such person are or have a reasonable
possibility of being in conflict rZth the
interests of his client. (Emphasfs added).
Rotifvina a defendant of the need to auuear .. in court is not a corn-
munication Non the subject of the representation" prohibited by
DR-7-104(A)(l). See gencEally Pannell v. State, 666 S.W.2d 96 (Tex.
Grim. App. 1984); Renrlcliv. State, 694 S.W.2d 341 (Tax. Grim. App.
1985); State v. Lemon, 6011 S.W.Zd 313 (Tex. Civ. App. - Amarillo 1980,
no writ). Such "advice" is more akin to advising a def&ndant to
secure counsel. Conseqwntly. we believe that a proescutor is not
ethically prohibited by DX-7-104 from notifying misdemeanor defendants
of pre-trial hearings and trial settings.
p. 1994
Ronorable Dele llama - Page 68 (JM-435)
SUUMARP
Article 28.01 of the Texas Code of Criminal
Procedure provide:, that the court has the rrspon-
sibillty to notify defendants of pre-trial
hearings. The court also has the responsibility
to notify defet,dants of trial settings. A
prosecutor, however, is not ethically prohibited
from notifying de:Eendants of pre-trial hearings
and trial setting:,.,
J b
Very truly your
AA
JIM MATTOX
Attorney General of Texas
JACK HIGRTOWER
First Assistant Attorney General
MARYKELLER
Executive Assistant Attorneg General
ROBERTGRAY
Special Assistant Attorney General
RICK GILPIK
Chairman, Opinim Committee
Prepared by Jennifer Riggs
Assistant Attorney General
p. 1995