Does a Texas county judge lose magistrate powers when the county court loses its criminal and civil jurisdiction?

TX AG Opinion GA-0642: Does a county judge keep magistrate power after losing court jurisdiction?

Plain-English summary

The Aransas County Attorney explained that in 2001 the Legislature created the Aransas County Court at Law and removed all civil, probate, juvenile, and criminal jurisdiction from the constitutional county court, placing that jurisdiction in the new statutory court. The constitutional county judge still wanted to magistrate prisoners, read them their rights, set bonds, and perform other magistrate duties under the Code of Criminal Procedure. The question was whether the 2001 changes stripped the county judge of his magistrate powers.

The opinion explained the two kinds of county-level courts. Article V, section 15 of the Texas Constitution creates a constitutional county court in each county, presided over by the county judge. Article V, section 1 lets the Legislature create additional statutory courts, such as county courts at law, and divest the constitutional county court of its judicial jurisdiction on a county-by-county basis. That is what House Bill 3643 did in Aransas County: section 25.0061 created the County Court at Law, and section 26.104 provided that the constitutional county court has no probate, juvenile, civil, or criminal jurisdiction.

The opinion then separated the office of county judge from the role of magistrate. Article 2.09 of the Code of Criminal Procedure lists county judges (along with many other officers) as magistrates, and Texas courts have distinguished a judge's magistrate capacity from his capacity as a trial-court judge. More importantly, courts have held that a magistrate's jurisdiction is not determined by the subject-matter jurisdiction of the court on which the judge ordinarily sits. All magistrates of a given county have co-equal magistrate jurisdiction, so a magistrate can, for example, take a felony complaint and issue an arrest warrant even if his court has no felony jurisdiction.

Because section 26.104 addressed only the constitutional county court's subject-matter jurisdiction, and said nothing about the county judge's magistrate duties, the opinion concluded the county judge of Aransas County retained the power to act as a magistrate after the 2001 divestiture.

Currency note

This opinion was issued in 2008. 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 Government Code provisions creating the Aransas County courts and the Code of Criminal Procedure magistrate provisions may have been amended since 2008. Confirm current law before relying on this analysis.

Who this opinion affected (as of 2008)

County judges: The opinion concluded that a county judge listed as a magistrate under article 2.09 keeps magistrate powers even when the county court loses its probate, juvenile, civil, and criminal jurisdiction to a statutory county court.

Sheriffs and jails: The opinion meant the county judge could still magistrate arrested persons, read rights, set bonds, and issue warrants, regardless of the constitutional court's narrowed jurisdiction.

Counties with county courts at law: The opinion treated divestiture of a constitutional county court's judicial jurisdiction as a county-by-county matter that does not, by itself, touch the county judge's separate magistrate role.

Common questions

Did losing court jurisdiction strip the county judge of magistrate powers?
No. The opinion concluded the county judge retained his magistrate powers, because the magistrate role is separate from the court's subject-matter jurisdiction.

Why doesn't a magistrate's power depend on the court's jurisdiction?
Texas courts have held that a magistrate's jurisdiction is not set by the subject-matter jurisdiction of the court the judge ordinarily sits on. All magistrates of a county have co-equal magistrate jurisdiction.

What magistrate duties were at issue?
Reading arrested persons their rights, setting bonds, issuing search and arrest warrants, and other magistrate duties under the Code of Criminal Procedure.

Did the divestiture statute mention magistrate duties?
No. Section 26.104 addressed only the constitutional county court's probate, juvenile, civil, and criminal jurisdiction, and said nothing about the judge's magistrate role.

Background and statutory framework

Article V, section 15 of the Texas Constitution creates a constitutional county court in each county, with the county judge as presiding officer exercising judicial functions as provided by law, while article V, section 1 authorizes the Legislature to create additional statutory courts (Tex. Const. art. V, §§ 15, 16, 1; Tex. Pipe Line Co. v. Hunt, 228 S.W.2d 151, 153 (Tex. 1950); Regian v. Sowell, 534 S.W.2d 175, 176 (Tex. Civ. App.-Waco 1976, writ ref'd n.r.e.)). In 2001 the Legislature created the County Court at Law of Aransas County and provided that the constitutional county court has no probate, juvenile, civil, or criminal jurisdiction (Tex. Gov't Code Ann. §§ 25.0061-.0062, 26.104 (Vernon 2004); § 25.0003(a) (Vernon Supp. 2007)). Article 2.09 of the Code of Criminal Procedure lists county judges as magistrates, and courts distinguish the magistrate capacity from the judge's general trial-court capacity (Tex. Code Crim. Proc. Ann. art. 2.09 (Vernon Supp. 2007); State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 423 (Tex. Crim. App. 1990); Tex. Dep't of Transp. v. Marquez, 885 S.W.2d 456, 458 (Tex. App.-El Paso 1994, no writ)). A magistrate's jurisdiction is not determined by the subject-matter jurisdiction of the court on which the judge ordinarily sits; all magistrates of a county have co-equal magistrate jurisdiction (O'Quinn v. State, 462 S.W.2d 583, 588 (Tex. Crim. App. 1970); Ex parte Knight, 904 S.W.2d 722, 726-27 (Tex. App.-Houston [1st Dist.] 1995, writ ref'd); Ex parte Clear, 573 S.W.2d 224, 228 (Tex. Crim. App. 1978)). Magistrate duties include preventing threatened offenses, issuing warrants and summonses, reading rights to arrested persons, and issuing search warrants (Tex. Code Crim. Proc. Ann. arts. 2.10, 15.03(a), 18.01 (Vernon 2005); art. 15.17 (Vernon Supp. 2007); art. 4.07 (Vernon 2005)).

Citations

Statutes:

• Tex. Const. art. V, §§ 15, 16, 1
• Tex. Code Crim. Proc. Ann. art. 2.09 (Vernon Supp. 2007); arts. 2.10, 4.07, 15.03(a), 18.01 (Vernon 2005); art. 15.17 (Vernon Supp. 2007)
• Tex. Gov't Code Ann. §§ 25.0061-.0062, 26.104 (Vernon 2004); § 25.0003(a) (Vernon Supp. 2007)

Cases:

• Tex. Pipe Line Co. v. Hunt, 228 S.W.2d 151, 153 (Tex. 1950)
• Regian v. Sowell, 534 S.W.2d 175, 176 (Tex. Civ. App.-Waco 1976, writ ref'd n.r.e.)
• State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 423 (Tex. Crim. App. 1990)
• Tex. Dep't of Transp. v. Marquez, 885 S.W.2d 456, 458 (Tex. App.-El Paso 1994, no writ)
• O'Quinn v. State, 462 S.W.2d 583, 588 (Tex. Crim. App. 1970)
• Ex parte Knight, 904 S.W.2d 722, 726-27 (Tex. App.-Houston [1st Dist.] 1995, writ ref'd)
• Ex parte Clear, 573 S.W.2d 224, 228 (Tex. Crim. App. 1978)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0642
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0642.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

July 8, 2008

The Honorable James L. Anderson, Jr.
Aransas County Attorney
301 North Live Oak Street
Rockport, Texas 78382

Opinion No. GA-0642

Re: Whether the creation of a county court at law and the related divestiture of the constitutional county court's probate, juvenile, civil, and criminal jurisdiction stripped a county judge of his powers as "magistrate" (RQ-0669-GA)

Dear Mr. Anderson:

You tell us that "[i]n 2001 the Legislature of the State of Texas created the Aransas County Court at Law and removed all civil, probate, juvenile and criminal jurisdiction from the County Court of Aransas County and vested that jurisdiction in the Aransas County Court at Law."[1] You indicate that "[t]he County judge (Judge of the County Court of Aransas County Texas) wishes to magistrate prisoners in the Aransas County Jail, read them their rights, set bonds and perform all other duties as a magistrate set out by the Code of Criminal Procedure." Request Letter, supra note 1; see also TEX. CODE CRIM. PROC. ANN. art. 2.09 (Vernon Supp. 2007) (listing county judges as magistrates). You seek to understand whether the county judge retains the power to act as a magistrate in light of the 2001 legislative changes. Request Letter, supra note 1.

I. Background

A. General

Article V, section 15 of the Texas Constitution establishes a "County Court" for each county. TEX. CONST. art. V, § 15. These courts are commonly referred to as "constitutional county courts" to distinguish them from county-level courts created by statute. See Tex. Pipe Line Co. v. Hunt, 228 S.W.2d 151, 153 (Tex. 1950) (referring to courts created by article V, section 15 as "constitutional county courts"). A constitutional county court "has jurisdiction as provided by law" and the county judge, as the presiding officer, "has judicial functions as provided by law." TEX. CONST. art. V, § 16; see also, e.g., TEX. GOV'T CODE ANN. §§ 26.045(a) (Vernon Supp. 2007) (giving county court exclusive original jurisdiction over certain misdemeanor offenses), 26.046 (Vernon 2004) (giving county court certain appellate jurisdiction); TEX. CODE CRIM. PROC. ANN. art. 4.07 (Vernon 2005) (giving county court original jurisdiction over certain misdemeanor offenses).

Article V, section 1 of the Texas Constitution authorizes the Legislature to "establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof," including county-level courts. TEX. CONST. art. V, § 1; see Regian v. Sowell, 534 S.W.2d 175, 176 (Tex. Civ. App.-Waco 1976, writ ref'd n.r.e.). Article V, section 1 courts are oftentimes referred to as "statutory courts." See Regian, 534 S.W.2d at 176 (observing that under article V, section 1 of the Texas Constitution, "the Legislature has from time to time created so-called 'statutory' courts across the State, such as county courts at law, county civil courts, domestic relations courts and others"). Title 2, subtitle A of the Government Code establishes statutory county courts and otherwise provides for both constitutional and statutory courts. See, e.g., TEX. GOV'T CODE ANN. chs. 25 ("Statutory County Courts"), 26 ("Constitutional County Courts") (Vernon 2004 & Supp. 2007).

"[T]here is a tradition of divesting the constitutional county court[s] of [their] judicial jurisdiction-civil and criminal-and placing" that jurisdiction with other courts, such as the statutory county courts,[2] because of the myriad legislative and administrative duties county judges have in addition to their judicial duties, such as serving as the presiding officer of the commissioners court. 40 GEORGE E. DIX, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 1.42 (2d ed. 2001); see id. §§ 1.41 ("In large and middle sized counties, the[] statutory courts handle much of the judicial business that the County Judge handles in small counties."), 1.45 ("Part of the movement to divest constitutional county courts of their civil and criminal jurisdiction has been the creation of various so called 'statutory county courts.'"); see also 36 DAVID B. BROOKS, TEXAS PRACTICE: COUNTY AND SPECIAL DISTRICT LAW § 22.5 (2d ed. 2002) ("The county judge in Texas serves as the presiding officer of the commissioners court, in addition to being the judge of the county court. He also performs diverse administrative duties in his own name and title ...."). Divestiture has been accomplished on a county-by-county basis rather than a statewide basis. See 40 GEORGE E. DIX, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 1.42 (2d ed. 2001). Thus, the Government Code provisions creating the courts in a particular county must be examined in order to determine the jurisdiction of those courts. See id. We now turn to analyze the county-level courts of Aransas County.

B. County-level Courts of Aransas County

In 2001, the Legislature passed House Bill 3643 establishing the County Court at Law of Aransas County ("County Court at Law") and altering the jurisdiction of the Aransas County constitutional court. See Act of May 22, 2001, 77th Leg., R.S., ch. 688, §§ 1-2, 2001 Tex. Gen. Laws 1311, 1311-12 (codified at TEX. GOV'T CODE ANN. §§ 25.0061-.0062, 26.104). Section 25.0061, Government Code, establishes the County Court at Law. See TEX. GOV'T CODE ANN. § 25.0061 (Vernon 2004). It provides: "Aransas County has one statutory county court, the County Court at Law of Aransas County." Id. The County Court at Law has "jurisdiction provided by Section 25.0003 [, Government Code,] and other law" as well as concurrent jurisdiction with the district court in family law cases and "felony cases to conduct arraignments, conduct pretrial hearings, and accept guilty pleas." Id. § 25.0062(a). Section 26.104, Government Code, provides the following as to the constitutional court: "The County Court of Aransas County has no probate, juvenile, civil, or criminal jurisdiction." Id. § 26.104. Thus, the Aransas County constitutional court was divested of its probate, juvenile, civil, and criminal jurisdiction when the County Court at Law was created.

II. Analysis

You ask the following regarding the 2001 legislative action as to the Aransas County courts:

Because the County Judge is enumerated in the Code of Criminal Procedure as a "Magistrate" did the enabling legislation creating the Aransas County Court at Law, vesting certain powers and jurisdiction in it, and divesting certain powers and jurisdiction from the Aransas County Court, remove the County Judge's magistrate rights and powers granted and mandated under the Code of Criminal Procedure, thereby preventing the County Judge of Aransas County from having the authority to read prisoners rights, set bonds, issue search warrants and perform other duties as set out by the Code of Criminal Procedure for magistrates?

Request Letter, supra note 1.

Article 2.09, Code of Criminal Procedure, lists a county judge as a magistrate within the meaning of that Code. See TEX. CODE CRIM. PROC. ANN. art. 2.09 (Vernon Supp. 2007) (listing various officers from the justices of the Supreme Court to the mayors and recorders of incorporated cities as magistrates). And while a county judge's role as magistrate may grow out of the office of county judge, courts of this state have clearly distinguished between the two positions. Cf. State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 423 (Tex. Crim. App. 1990) (indicating that respondent was "being sued in his limited capacity as magistrate rather than his general capacity as trial court judge of a district court"); Tex. Dep't of Transp. v. Marquez, 885 S.W.2d 456, 458 (Tex. App.-El Paso 1994, no writ) (holding that district judge convened court of inquiry acting as magistrate and thus court of appeals lacked jurisdiction to issue mandamus directing district judge to terminate proceedings).

More importantly to the issue at hand, courts in this state have held that the jurisdiction of a magistrate is not determined by the subject matter jurisdiction of the court upon which the judge ordinarily sits. See O'Quinn v. State, 462 S.W.2d 583, 588 (Tex. Crim. App. 1970) ("That it was not the intent of the legislature to limit the authority of the judge, recorder or mayor to administering the oath to complaints charging offenses which the corporation court has jurisdiction to try is made clear by Art. 2.09 V.A.C.C.P., making the mayors and recorders and the judges of the city courts ... magistrates."); Ex parte Knight, 904 S.W.2d 722, 726-27 (Tex. App.-Houston [1st Dist.] 1995, writ ref'd) (concluding that justice court, sitting as a magistrate and not a justice of the peace, can take a felony complaint and issue a warrant of arrest even though the justice court does not have jurisdiction over felony cases). Rather, all magistrates of a given county have co-equal magistrate jurisdiction. See Ex parte Clear, 573 S.W.2d 224, 228 (Tex. Crim. App. 1978); see also Tex. Att'y Gen. Op. Nos. GA-0551 (2007) (discussing a justice of the peace's jurisdiction over a defendant in a felony case); MW-581 (1982) (discussing Clear).

Here, section 26.104 of the Government Code addresses the subject matter jurisdiction of the county court. TEX. GOV'T CODE ANN. § 26.104 (Vernon 2004). It makes no mention of the county judge's duties and powers as a magistrate-a role, as we have previously explained, that is separate from that as presiding officer of the county court. See, e.g., TEX. CODE CRIM. PROC. ANN. arts. 2.10 (Vernon 2005) (setting out general magisterial duties); 6.01-.04 (requiring a magistrate to act to prevent threatened offenses); 15.03(a) (authorizing a magistrate to issue a warrant of arrest or a summons in certain circumstances); 15.17 (Vernon Supp. 2007) (setting out a magistrate's duties, including reading rights, when an arrested person is brought before the magistrate); 18.01 (Vernon 2005) (indicating a magistrate can issue a search warrant). Based on the express language of section 26.104 and the principle set out in O'Quinn, Knight, and Clear that the jurisdiction of a magistrate is distinct from that of the underlying court upon which the officer sits, we conclude that the county judge of Aransas County retains the power to act as a magistrate subsequent to the 2001 legislative change that divested the Aransas County Court of its probate, juvenile, civil, and criminal jurisdiction.

Footnotes

[1] See Letter from Honorable James L. Anderson, Jr., Aransas County Attorney, to Honorable Greg Abbott, Attorney General of Texas (Jan. 8, 2008) (on file with the Opinion Committee, also available at http://www.texasattorneygeneral.gov) [hereinafter Request Letter].

[2] Generally, "[a] statutory county court has jurisdiction over all causes and proceedings, civil and criminal, original and appellate, prescribed by law for county courts." TEX. GOV'T CODE ANN. § 25.0003(a) (Vernon Supp. 2007).

SUMMARY

The county judge of the Aransas County Court ("Court"), a constitutional court, retains the power to act as a magistrate despite the fact that the Court was divested of its probate, juvenile, civil, and criminal jurisdiction.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Christy Drake-Adams
Assistant Attorney General, Opinion Committee