Untitled Texas Attorney General Opinion

Gerald C.'.Masln L%WWI-IN H. '&CXAf3 A¶-roPrarn~ "nN.sar. Honorable M. D. Emerson County Attorney, Lamar County Paris, Texas Dear sir: Opinion No. O-2349 Re: Justice Court-Waiver of Jurisdiction by appearance before justice of peace for plea of guilty outside precinct of arreat. This is to acknow~ledgeyour request for our opinion as to the legality of the procedure wherein a de- fendant enter8 a plea before a justice of the peace at a place outside the territorial limits of the precinct wherein the arrest was perfected. You submit the follow- ing question: "If the defendant waives the question of jurisdiction by his appearance before and plea of guilty to a Juatice of the Peace, is such plea of guilty so accepted a legal plea of guilty?" It is provided by statute that justices of the peace have jurisdiction in criminal cases where the fine to be imposed by law may not exceed two hundred dollara. (Art.60, C.C.P.) In the case of Ex parte Van Kocnneritz, 105 Tex. Cr. R. 135, 286 S. w.T87, petitioner sought re- lease through a writ of habeas corpus. A complaint chargin an offense had been filed in justice precinct 6, of Travis County, whereas petitioner claimed the offense was committed, if at all, in justice precinct 3. We quote from the opinion of the Court of Criminal Appea~ls: "We do not agree with applicant's con- tention that the alleged anticipated trial of the applicant before the justice court of precinct No. 6 would be a mere nullity. Hi8 action in the event of a trial, in OUP judg- ment, would not be void. Under the plain terms of the statute itself, the justice of precinct No. 6 has jurisdiction of the subject

HOG. M. D. Emerson, page 2 (O-2349)

matter of the suit. Article 60, 1925 Revision C.C.P. "If it be conceded that applicant would have the right upon proper motion to have the case transferred to the justice precinct in which the alleged offense occurred, which question it is unecessary to decide in this case, it would still follow that such right would not render the trial of the cause in justice urecinct No. 6 void. SUD-

we think, correctly stated the rule as follows: "'The word "void" can with no :ropriety be applied to a thing which appears to be sound, aad which while in existence can command and en- force respect, and whose infirmity cannot be made maaifest. If a judgmmt rendered without in fact bringing the defendants into court cannot be attack- ed collaterally on this ground unless the want of authority over them appears in the record, it is no more void than if it we~e founded upon a mere misconception of some matter of law OP of fact oc- curing in the exercise of an unquestionable juris- diction. In either case the judgment can be avoid- ed and made functus officio by some appropriate proceedings instituted for that purpose; but, if not so avoided, must be respected and enforced.' Dunn v. Taylor, 42 Tex. Civ. App. 241, 94 S.W. 347. "The anticipated action of the justice of the peace of precinct No. 6 being in no event more than voidableI applicant is sot entitled to the relief sought.' (Bnphasis ours) The case of Stewart v. Smallwood, (Tcx. Civ. App.) 102 S. W. 159 is a civil case wherein the resident justice of the peace was absent from his precinct and the nearest justice of the peace in an adjoining precinct acted for him. Plaintiff proceeded to judgment and the defendant appealed, contending the visi~tingjustice exceeded his authority in going out of his precinct Ao act for the absent justice. The Court of Civil Appeala affirmed the case saying:

Hon. M. D. Emerson, page 3 (o-2349)

"The fact that Justice Self attempted to act at Boeham, outside hia precinct, aad in the place of Justice Fitzgerald, abee&, and issued the citation while so acting, doea aot necessarily require a dismissal of the suit. This irregular- ity only affected the quo&Ion of jurisdiction over the person of defendant, and could be waived by him. *** These facts ahow a voluntary appear- ance by defendant and his submission to the juris- diction of the court over his person, and the motion to dismiss was therefore properly overruled.***." We have been unable to find any further expreasion of our courts upon your question aa presented. We do wish to direct your attention to the provisions of Article 11, C.C.P. as amended by the Acts of the Forty-Second Legislature, ch 43, sec. 32, p. 65: "The defendant in a criminal prosecution for any offensk, may waive any right secured him by law except the rQht of a trial by a Jury in a felony cane when he enters a plea of not guilty." You are therefore advised that it is our opinion your question ahould be answered in the affirmative; that where a defendant waives the question of jurisdic- tion by appearing before a Justice of the Peace and entering a plea of guilty, such plea of guilty is legal, even though made outside the precinct of arrest.

Very truly yours

ATTORNEX GENERAL OF TEXAS By e/s/ Benjamin Woodall Benjamin Woodall Assistant

Approved Opinion Committee By RUB BW:RW:vb Chairman

APPROVED MAY 20, 1940 Gerald C. Mann Attorney General of Tcxaa