In Texas, do you go to justice court or county court for passing a stopped school bus?

Plain-English summary

In 1993 the legislature (House Bill 1084) raised the penalties for "overtaking and passing a school bus" under section 104 of article 6701d, V.T.C.S. The fine went up to between $200 and $1,000, a repeat offense could also bring a driver's license suspension of up to six months, and a defendant who could not pay could be ordered to do community service. The chair of the House Transportation Committee asked the Attorney General a practical question: should these cases be filed in justice court or county court?

The office split the answer by whether it was a first offense or a repeat. A first offense was punishable by fine only, which placed it within a justice court's jurisdiction under article V, section 19 of the Texas Constitution; that jurisdiction is not exclusive, so a first offense could be brought in either justice court or the county court (they share concurrent jurisdiction). The office reaffirmed its earlier opinions DM-277 (1993) and JM-1089 (1989) holding that the $500 ceiling on justice court jurisdiction in article 4.11 of the Code of Criminal Procedure is unconstitutional, so the new, higher fine did not by itself move a first offense out of justice court. A repeat offense was different. Because the court could suspend the driver's license, and a license suspension is not a fine, the office concluded (following Ex parte Morris) that a second or subsequent offense could be prosecuted only in county court. The office also rejected the argument that the community-service option in subsection (e) ousted justice courts of all jurisdiction, explaining that community service is an alternative to a fine, not an added punishment, and that the same legislative session expressly authorized justices of the peace to order community service (House Bill 930).

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The traffic law construed here, article 6701d, V.T.C.S., was later repealed and recodified into the Transportation Code, so the "section 104 of article 6701d" label no longer matches current law, and the penalties and court-jurisdiction statutes (Code of Criminal Procedure articles 4.07 and 4.11, Government Code chapters 24 to 30) have been amended since. Read this page for the office's reasoning about fine-only offenses and justice court jurisdiction, not for the current penalty amounts or statute numbers.

What the opinion meant for those who asked

For justice courts and county courts: The opinion concluded that, for a first offense under section 104, the justice court and the county court had concurrent jurisdiction, so a first-offense case could be filed in either. For a second or subsequent offense, the opinion held that only the county court had jurisdiction, because of the possible driver's license suspension.

For prosecutors: The opinion explained that a first-offense school-bus-passing charge could be initiated in the justice court precinct where the offense occurred or in the constitutional or statutory county court, while a charge against a defendant already once convicted under the statute had to be brought in county court.

On the $500 jurisdiction cap: The opinion reaffirmed DM-277 and JM-1089 that article 4.11 of the Code of Criminal Procedure was unconstitutional to the extent it tried to limit justice court jurisdiction to fines of $500 or less, so the $200 to $1,000 fine range did not, on its own, keep a first offense out of justice court.

Common questions

Where is a first offense of passing a stopped school bus prosecuted in Texas?
The office concluded a first offense could be brought in either the justice court precinct where it occurred or the county court, because the offense was punishable by fine only (justice court jurisdiction under article V, section 19) but that jurisdiction was not exclusive.

Why must a repeat offense go to county court?
Because a second or subsequent offense could carry a driver's license suspension in addition to the fine, and a license suspension is not a fine. Following Ex parte Morris, the office concluded that the possibility of license suspension removed repeat offenses from justice court jurisdiction.

Did the higher fine (up to $1,000) keep the case out of justice court?
No. The office reaffirmed that the $500 cap in article 4.11 of the Code of Criminal Procedure was unconstitutional, because article V, section 19 gives justice courts jurisdiction over any criminal offense punishable by fine only, regardless of the amount.

Did the community-service option change which court could hear the case?
No. The office concluded that the community service in subsection (e) was an alternative to a fine, not an additional punishment, and noted that the same session of the legislature (House Bill 930) authorized justices of the peace to order community service, so the option did not oust justice court jurisdiction over first offenses.

Background and statutory framework

House Bill 1084 (Acts 1993, 73d Leg., ch. 88) amended section 104 of article 6701d to set a fine of $200 to $1,000 for overtaking and passing a school bus, to allow a driver's license suspension of up to six months on a second or subsequent conviction, and to allow community service for a defendant who could not pay. The forum question turned on the criminal jurisdiction of Texas courts.

Article V, section 19 of the Texas Constitution gives justice of the peace courts original jurisdiction in criminal misdemeanor cases punishable by fine only, plus any other jurisdiction the legislature provides. In 1991 the legislature amended article 4.11 of the Code of Criminal Procedure to cap justice court criminal jurisdiction at fines of $500 or less, and amended article 4.07 and Government Code section 26.045 to give county courts jurisdiction where the fine exceeds $500. The office had already held, in JM-1089 (1989) and DM-277 (1993), that article V, section 19 does not permit the legislature to strip justice courts of jurisdiction over fine-only offenses, so the $500 cap in article 4.11 was unconstitutional and void to that extent. Because a first offense under section 104 was punishable by fine only, it fell within justice court jurisdiction, but that jurisdiction was not exclusive, so the justice and county courts had concurrent jurisdiction over first offenses.

For repeat offenses, the office relied on Ex parte Morris, 325 S.W.2d 386 (Tex. Crim. App. 1959), which held that a justice court could not hear a criminal trespass case where the punishment included not only a fine but also forfeiture of a hunting license, because the forfeiture was not a pecuniary fine. By analogy, the possible driver's license suspension on a second or subsequent section 104 offense took those cases outside justice court jurisdiction and left them in county court. Finally, the office rejected the argument that the community-service provision (subsection (e)) deprived justice courts of jurisdiction over any section 104 case, reasoning that community service was an alternative punishment to a fine, and pointing to House Bill 930 (Acts 1993, 73d Leg., ch. 298, adding Code of Criminal Procedure article 45.521), enacted in the same session, which authorized justices of the peace and municipal judges to order community service. The office did not decide whether, for a repeat-offense prosecution, the first conviction had to have occurred after House Bill 1084's effective date.

Citations

Constitutional and statutory provisions discussed:

• V.T.C.S. art. 6701d, § 104 (overtaking and passing a school bus; amended by Acts 1993, 73d Leg., ch. 88 (House Bill 1084))
• Tex. Const. art. V, § 19 (justice of the peace court jurisdiction); § 16 (constitutional county court); § 1 (legislature's power to establish other courts)
• Code of Criminal Procedure art. 4.07 (county court criminal jurisdiction); art. 4.11 (justice court criminal jurisdiction; $500 cap held unconstitutional); art. 4.14 (municipal court jurisdiction); art. 45.521 (community service; added by Acts 1993, 73d Leg., ch. 298 (House Bill 930))
• Gov't Code § 26.045 (constitutional county court jurisdiction); § 25.0003 (statutory county courts); chs. 24, 25, 26, 27, 29, 30 (district, statutory county, constitutional county, justice, and municipal courts)
• Article 6687b, Vernon's Texas Civil Statutes (driver's license definition); Penal Code art. 1377 (former criminal trespass statute, discussed in Ex parte Morris)

Cases discussed:

• Ex parte Morris, 325 S.W.2d 386 (Tex. Crim. App. 1959)

Prior Attorney General opinions referenced: DM-277 (1993); JM-1089 (1989); Letter Opinion 92-23 (1992) (overruled by DM-277).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0285
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1994/dm0285.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

January 20, 1994

Honorable David H. Cain
Chair
Committee on Transportation
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-285

Re: What court is the proper forum for prosecutions brought under House Bill 1084, Acts 1993, 73d Leg., ch. 88, at 175-76 (RQ-629)

Dear Representative Cain:

You have requested our opinion regarding the proper forum for prosecution of the offense of "overtaking and passing a school bus." The 73rd Legislature amended section 104 of article 6701d, V.T.C.S., to increase the penalties attached to this offense, which hitherto had been limited to "a fine of not less than $50 nor more than $200." Acts 1993, 73d Leg., ch. 88, § 1, at 175-76. As of September 1, 1993, section 104 prescribes the following penalties:

(c) An offense under this section is punishable by a fine of not less than $200 and not more than $1,000.

(d) On conviction of a person of a second or subsequent offense under this section, the court may order that the person's driver's license be suspended for a period of up to six months beginning on the date of conviction. In this subsection, "driver's license" has the meaning assigned by Section 1, Chapter 173, Acts of the 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas Civil Statutes).

(e) If a person fails to pay a previously assessed fine or costs on a conviction under this section, or is determined by the court to have insufficient resources or income to pay a fine or costs on a conviction under this section, the court may order the person to perform community service. The court shall set the number of hours of service under this subsection.

You ask whether prosecutions under the newly amended section 104 should be initiated in a justice court or a county court. For reasons to be discussed, infra, we initially consider only "first offense" violations brought under the newly amended section 104.

Article V, section 19 of the Texas Constitution provides:

Justice of the peace courts shall have original jurisdiction in criminal matters of misdemeanor cases punishable by fine only, exclusive jurisdiction in civil matters where the amount in controversy is two hundred dollars or less, and such other jurisdiction as may be provided by law. Justices of the peace shall be ex officio notaries public.

Tex. Const. art. V, § 19. The present version of article V, section 19, was adopted in 1985. Prior thereto, the criminal jurisdiction of a justice court encompassed "all cases where the penalty or fine to be imposed by law" was "not . . . more than for two hundred dollars."

In 1991, section 4.11 of the Code of Criminal Procedure was amended to grant to justice courts "jurisdiction in criminal cases where the fine to be imposed by law may not exceed five hundred dollars." Acts 1991, 72d Leg., ch. 108, § 4, at 681. Simultaneously, section 4.07 of the code was amended to give county courts "original jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given to the justice court, and when the fine to be imposed shall exceed five hundred dollars." Id. § 3, at 681. In 1991, section 26.045 of the Government Code was amended to grant to every constitutional county court, and, by virtue of subsection 25.0003 of the Government Code, to every statutory county court as well, "exclusive original jurisdiction of misdemeanors other than misdemeanors involving official misconduct and cases in which the highest fine that may be imposed is $500 or less." Id. § 6, at 682.

Article V, section 16 of the Texas Constitution provides that a [constitutional] county court, i.e., one whose presiding officer is the county judge, "has jurisdiction as provided by law." Statutory county courts, on the other hand, are not specifically identified in the constitution; rather, they exist by virtue of the legislature's authority, in article V, section 1, to "establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof."[Footnote 1] The legislature is clearly authorized to prescribe the jurisdiction of both kinds of county court, but it may not do so in contravention of article V, section 19, which grants to a justice of the peace jurisdiction of all criminal offenses punishable by fine only, and, in addition, authorizes the legislature to add to the jurisdiction of the justice court.

This result was recently affirmed in Attorney General Opinion DM-277 (1993), in which we determined that justice court is a proper forum for complaints filed under section 13 of article 249a, V.T.C.S., which prohibits the unauthorized practice of architecture. The opinion declared that article 4.11, Code of Criminal Procedure, "is unconstitutional and void to the extent that it purports to" limit justice court jurisdiction to those cases in which the maximum fine is $500 or less. Opinion DM-277 cited with approval Attorney General Opinion JM-1089 (1989), which was the first opinion to hold that the $500 limitation imposed by article 4.11 was an invalid attempt to circumscribe the jurisdiction of the justice court.[Footnote 2]

Attorney General Opinion JM-1089 also noted that there are a variety of circumstances in which "criminal district courts and constitutional and statutory county courts would have jurisdiction" over particular kinds of misdemeanors, and that statutes relevant to a particular county must be consulted in order to determine the precise criminal jurisdiction of the various criminal district, district, constitutional county, and statutory county courts.[Footnote 3] See Gov't Code chs. 24 (district courts), 25 (statutory county courts), 26 (constitutional county courts), 27 (justice courts), 29 (municipal courts), 30 (municipal courts of record). Whatever the concurrent jurisdiction of such courts, it is clear that, on the basis of article V, section 19, a justice court may not be denied jurisdiction of any criminal matter in which the maximum punishment is limited to a fine.

We now consider the applicability of these principles to the question you present, i.e., which court is the proper forum for prosecuting a first offense under section 104 of article 6701d. Because the clear language of the statute provides for punishment "by a fine of not less than $200 and not more than $1,000," the offense is one which, under article V, section 19 of the Texas Constitution, is within the jurisdiction of the justice court. The constitution does not, however, make that jurisdiction "exclusive." Thus, article V, section 19, does not invalidate article 4.07 of the Code of Criminal Procedure, which confers upon a county court original criminal jurisdiction in all cases in which exclusive original jurisdiction is not committed to the justice court, and where the maximum fine upon conviction is greater than $500.[Footnote 4] In such instances, the justice and county courts have concurrent jurisdiction over all first offense prosecutions under section 104.[Footnote 5]

Thus far, we have limited our inquiry to "first offense" prosecutions under newly amended section 104. Subsection (d) thereof provides that, for "a second or subsequent offense . . . the court may order that the person's driver's license be suspended for a period of up to six months beginning on the date of conviction."

In Ex parte Morris, 325 S.W.2d 386 (Tex. Crim. App. 1959), the court considered whether an offense under article 1377 of the Penal Code (the criminal trespass provision) could properly be initiated in justice court. The maximum punishment under the statute was "a fine of not more than $200," and, in the court's discretion, forfeiture of the defendant's hunting license for a period of one year. The court held that, since the provision regarding license forfeiture was "not a pecuniary fine or a part of a fine," a justice court was without authority to hear a case under article 1377. Id. at 387.

Analogously, the court's authority to order the suspension of a defendant's driver's license, on conviction of a "second or subsequent offense," removes from justice court jurisdiction all second and subsequent offenses brought under section 104. As we have noted, article V, section 19 authorizes the legislature to grant to a justice court "such other jurisdiction as may be provided by law." Although the legislature could, under this provision, authorize justice court jurisdiction over offenses which carry a maximum punishment of both fine and license suspension, it has not done so. Thus, while first offense prosecutions under section 104 may be commenced either in justice or county court, any prosecution of a defendant who has been once convicted under that statute may be initiated only in county court.[Footnote 6]

It might also be argued that subsection (e) permits an "additional punishment"--community service--which would deprive a justice court of jurisdiction to hear any prosecution brought under section 104. In our opinion, such reasoning is fallacious. Subsection (e) prescribes not an "additional," but an "alternative," punishment. Unless such an alternative is available, a court's imposition of a fine under section 104 would be ineffectual in accomplishing the state's interest in punishment and deterrence. Furthermore, the same session of the legislature which amended section 104 specifically authorized the imposition of "community service" by a justice of the peace.

House Bill 930, Acts 1993, 73d Leg., ch. 298, at 1371-72, which adds section 45.521 to the Code of Criminal Procedure, provides for the imposition of community service by "a justice or judge" whenever a defendant has failed "to pay a previously assessed fine or costs, or who is determined by the court to have insufficient resources or income to pay a fine or costs." House Bill 930 is clearly intended to be applicable to those courts which specialize in "fine only" penalties. Indeed, the title of the bill indicates that it relates "to the authority of a justice of the peace or municipal judge to order community service in satisfaction of fine or costs and to the justice precinct in which persons may be tried or in which a constable may be allowed a fee." The "community service" language adopted in House Bill 930 is virtually identical to that used in subsection (e) of newly-enacted section 104. The two statutes, enacted by the same session of the legislature, are in pari materia with each other. In our opinion, legislative authority to prescribe "community service" as an alternative punishment in certain instances is clearly contemplated by that portion of article V, section 19, which permits the legislature to confer upon justice courts "such other jurisdiction as may be provided by law."

In summary, we conclude that a defendant who has not been previously convicted of the offense of "overtaking and passing a school bus," as described in section 104 of article 6701d, V.T.C.S., may be prosecuted either in the justice court precinct in which the offense occurs, or, subject to the limitations noted, supra, and described in Attorney General Opinion JM-1089, in the constitutional or statutory county court of the county in which it occurs. Persons who have been once convicted of the offense may not be tried in justice court.

SUMMARY

A defendant who has not been previously convicted of the offense of "overtaking and passing a school bus," as described in section 104 of article 6701d, V.T.C.S., may be prosecuted either in the justice court precinct in which the offense occurs, or, subject to certain limitations as described in Attorney General Opinion JM-1089 (1989), in the constitutional or statutory county court of the county in which it occurs. Persons who have been once convicted of the offense may not be tried in justice court.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

WILL PRYOR
Special Counsel

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

Footnote 1: Under article 4.14, Code of Criminal Procedure, a municipal court is granted exclusive original jurisdiction in all criminal cases that fit the following profile: 1) the offense occurs within the city's corporate limits; 2) the offense arises under a municipal ordinance which regulates fire safety, zoning, or public health and sanitation, including the dumping of refuse; and 3) the maximum punishment is by a fine of up to $2,000. The municipal court is also granted exclusive original jurisdiction in all other cases which 1) arise under a city ordinance, and in which 2) the maximum penalty is by a fine of up to $500. Finally, the municipal court is granted concurrent jurisdiction with a particular justice court under the following scenario: 1) the offense occurs within the city's corporate limits; 2) the offense occurs within the geographical boundaries of the justice court precinct; 3) the offense arises under the criminal laws of the state [rather than under a municipal ordinance]; and 4) the maximum punishment is by fine of not more than $500.

Footnote 2: Attorney General Opinion DM-277 also overruled Letter Opinion 92-23 (1992), which had upheld the $500 . . . .

Footnote 3: The criminal jurisdiction of a constitutional or statutory county court may be limited by special statutory provisions applicable to particular counties, as described in Attorney General Opinion JM-1089, supra.

Footnote 4: To the extent that section 26.045, Government Code, grants to a county court exclusive original jurisdiction over misdemeanors in which the maximum punishment is a fine of more than $500, it is . . . .

Footnote 5: The concurrent jurisdiction of a municipal court is limited to offenses arising under state law in which the maximum punishment is by a fine of not more than $500. Since municipal courts are not among those specifically established by the constitution, the legislature is free to impose restrictions upon their jurisdiction, and, in our opinion, has validly done so.

Footnote 6: You do not ask, and we do not consider whether, in order to permit prosecution under subsection (d), the first conviction must have occurred after the effective date of House Bill 1084.