Untitled Texas Attorney General Opinion ( 1979 )

The Attorney General of Texas
December 12, 1979 .
MARK WHITE
Attorney General
.?.“pmma court Building Honorable Maurice S. Pipkin Opinion No. MW-98
P.O. sox 12545 Executive Director
A”,ti”, TX. 78711
512/475-2501
State Commission on Judicial Conduct Re: Whether a justice of the
Supreme Court Building peace may hold court in his own
Austin, Texas 787l.l precinct and dispose of cases from
701 conlmu. Suite 200 another precinct.
O.ll”. TX. 7.5202
214”.26944
Honorable James Warren Smith, Jr.
Prio County Attorney
P. 0. Box V .
Pearsall, Texas 78081
Gentlemen:
Each of you asks questions concerning the jurisdiction and venue of
justice of the peace courts. The Commission on Judicial Conduct has asked
whether a justice. may, by exchanging benches, accept and disp6se 6f
misdemeanor complaints where the offense occurred in a nonadjacent justice
precinct of the county. Section 4.12 of the Code of Criminal Procedure
provides the proper venue for the trial of misdemeanor complaints in justice
court:
A misdemeanor case to be tried in justice court
shall be tried in the precinct in which the offense was
committed, or in which the defendant or any of the
defendants reside, or, with the written consent of the
State and each defendant or his attorney, in any other
precinct within the county; provided that in any
misdemeanor case in which the offense was
committed in a precinct where there is no qualified
justice precinct court, then trial shall be had in the
next adjacent precinct in the same county which may
have a duly qualified justice precinct court, or in the
precinct in which the defendant may reside; provided
that in any such misdemeanor case, upon disqualifica-
tion for any reason of all justices of the peace in the
precinct where the offense was committed, such case
maybe [sic] tried in the next adjoining precinct in the
same county, having a duly qualified justice of the
peace.
0.303
1. .II
Honorable Maurice .S. Pipkin
Honorable James Warren Smith, Jr. - Page Two (NW-98)
See also arts. 2377, 2393, 2399, V.T.C.S.; Code Crim. Proc. S 30.07. Proper venue
thereiore is in the “next adjacent precinct” or jn the precinct of the defendant’s residence.
Article 2393a, V.T.C.S., provide%
A justice may hold court for any other justice whose precinct is in
the same county; and the justices of a county may exchange
benches whenever they deem it expedient.
District judges are allowed to exchange benches, under similar language. Tex. Const art
V, Sll; art 1916, V.T.C.S. This power to exchange benches is a discretionary judicial
procedure subject to review only upon abuse of discretion. Floyd v. State, 488 S.W.2d 830
(Tex. Crim. App. 1972). A formal order stating the reasons or docket entry is not
necessary for judges to exchange benches. 9 Pendleton v. State, 434 S.W.2d 694 (Tex.
Grim. App. 1968). The justice who is exchanging benches serves as the presiding judge for
that court and must hold court in the same manner and place as would have the replaced
judge. Ex parte Lowe% 518 S.W.2d 897 (Tex. Civ. App. .-- Beaumont 1975, no writ).
Whether the exchange of benches between justices of the peace on a regular and frequent
basis amounts to an abuse of discretion or neglect of duties is a factual question which
cannot be resolved in the opinion process
::The Prio County Attorney has asked whether a justice of the peace may hold his
court in the better facilities of an adjacent precinct of the county with the consent of all
parties involved. We are aware of no authority which would permit a justice of the peace
to hold his court outside his precinct, but the same substantive result can be achieved by
trying the case in another precinct with the consent of the parties which would waive any
venue objections. V.T.C.S. art 2300. The justice of the peace who has the inadequate
facilities may then hear these cases under the exchange of bench procedure. Such a
resolution avoids the issue of the authority of a justice of the peace holding his court
outside his precinct.
SUMMARY
Justices of the peace may exchange benches and thereby sit in
another court outside of their precinct whenever expedient
However, use of such procedure may be subject to a charge of
abuse of discretion or neglect of duty.
&vww4Yo~
MARK WHITE
Attorney General of Texas
JOHN W. PAINTER, JR.
First Assistant Attorney General
p. 304
L G.‘!‘.’ ;r
. .
Honorable Maurice S. Pipkin
Honorable James Warren Smith, Jr. - Page Three (MN-98)
TRD L. HARTLEY 1-j ! .
Executive Assistant Attorney Ge&&i ’ .” :!
Prepared by David B. Brooks
and C. Robert Heath
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Tom Bullington
Chuck Campbell
Bob Gammage
Swan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
p. 305