Which Harris County justice precinct had venue over a bad-check charge, and did the justice have to reject it at filing?

Texas AG Opinion JM-190: Bad-Check Justice Court Venue

Plain-English summary

JM-190 concluded that article 45.22 controlled venue for bad-check charges filed in Harris County justice courts and that its precinct-venue requirement was mandatory.

"Article 45.22 of the Code of Criminal Procedure is applicable in Harris County and provides mandatory venue requirements for charges filed in the justice courts for issuing a bad check under section 32.41 of the Penal Code."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0190.pdf

Except when the precinct's justice was disqualified, the case had to be tried in the precinct where the offense occurred. The defendant's residence did not determine venue.

"Except as provided if a justice of the peace is disqualified, venue for misdemeanors in the justice courts in Harris County is limited to the precinct in which the offense occurs, regardless of the residence of the defendant."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0190.pdf

JM-190 distinguished venue from subject-matter jurisdiction. Venue identified the place where the prosecution began, while jurisdiction was the court's power to hear and decide the case.

"'Venue,' as applied to criminal cases, means the place in which prosecutions are to begin, while 'jurisdiction' means the power of the court to hear and determine the case."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0190.pdf

Subsequent treatment

The official landing page says JM-190 was clarified by JM-1036.

"Clarified by JM-1036 (1989)"
Source: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0190

JM-1036 clarified that article 45.22 prohibited trying an out-of-precinct offense, not merely accepting or filing the complaint. A justice did not violate the article by failing at filing to determine that the offense occurred elsewhere.

"A justice of the peace subject to article 45.22 does not violate the provisions of that article by failing to ascertain at the 'filing stage' that the offense in question was committed outside his precinct."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1036.pdf

The later opinion said the justice could comply by making the venue determination at the trial stage.

"He may comply with article 45.22 by making such determination at the 'trial stage.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1036.pdf

Currency note

This opinion was issued in 1984 and later clarified. Subsequent statutory amendments, court decisions, or later AG opinions may have further 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.

Common questions

Did article 4.12 or article 45.22 control in Harris County?

Article 45.22. JM-190 treated article 4.12 as the general rule and article 45.22 as the rule for counties meeting the population threshold.

"Article 45.22, rather than article 4.12, is applicable in Harris County."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0190.pdf

Could a justice hear a bad-check charge arising elsewhere in Harris County?

Not for trial under the rule JM-190 applied, unless the justice in the offense precinct was disqualified or another statutory exception applied.

"No person shall ever be tried in any justice precinct court unless the offense with which he was charged was committed in such precinct."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0190.pdf

Did the defendant's home precinct matter?

No. The opinion said residence was not significant when article 45.22 determined venue.

"The defendant's residence is not significant where article 45.22 determines venue."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0190.pdf

Could a precinct court hear the case when the defendant lived in another county?

Yes, if the offense occurred within that justice precinct.

"It is proper for a justice of the peace to accept a bad check charge/complaint ... [where] the offense occurs within the precinct of the justice of the peace in question and venue is proper in that precinct."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0190.pdf

Did the justice have to catch the venue problem when the complaint was filed?

JM-1036 clarified that the article did not impose that filing-stage duty. The violation occurred if the justice tried the out-of-precinct case.

"A failure at the 'filing stage' to ascertain that the offense was committed outside the precinct would not in itself violate the prohibition in section 1 on 'trying' such a case."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1036.pdf

Could a defendant obtain a venue change for an impartial jury?

JM-190 said a defendant who demanded a jury trial had a constitutional right to an impartial jury and to a venue change if necessary to secure one.

"A defendant who demands a jury trial has a constitutional right to an impartial jury and to a change of venue if it is necessary for that purpose."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0190.pdf

Background and statutory framework

The request concerned bad-check charges under Penal Code section 32.41, which the opinion described as Class C misdemeanors punishable only by a fine not exceeding $200.

"Section 32.41 of the Penal Code lists the elements that constitute the offense of issuance of a bad check and provides that such an offense is a Class C misdemeanor."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0190.pdf

The opinion said that punishment fit the constitutional and statutory subject-matter jurisdiction of justice courts.

"Accordingly, the offense of issuance of a bad check under section 32.41 is within the subject matter jurisdiction of the justice courts."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0190.pdf

Article 45.22 applied only to counties with a population of at least 225,000 under the preceding federal census.

"The provisions of this Article shall apply only to counties having a population of 225,000 or over according to the last preceding federal census."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0190.pdf

Citations and references

• Article 45.22 supplied the Harris County precinct-venue rule.

"No person shall ever be tried in any justice precinct court unless the offense with which he was charged was committed in such precinct."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0190.pdf

• Penal Code section 32.41 supplied the bad-check offense discussed by the opinion.

"Section 32.41 of the Penal Code lists the elements that constitute the offense of issuance of a bad check."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0190.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0190
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0190.pdf
• Clarifying opinion PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1036.pdf

Original opinion text

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

The Attorney General of Texas
JIM MAlTOX August 13, 1984
Attorney General

Sucmme Cowl Bulldlno Eonorable Hike.Drim:oll Opiniw No. m-190 P. 0. Box 12545 - Eerrie County Atto::uey AUS!h TX. 75711. ?%a 1001 Preston, Suit! 634 Re: Venue of criminal proceedings 5121475-2501 Houston, Texas 7’1002 in Justice Courts Telex SWS74~1367 Telecopier 51214750266
Dear Mr. Driscoll:

714 Jwkson. Suits 700 You have asked the folloving questions relating to the venue of Dallar. TX. 752024506
certain criminal prxeedings in the justice courts in Earris County:
21417428844

1. Dues article 4.12 or article 45.22 of the
4S24 Albsfi. Ave.. suite 180
Code of :riminal Procedure control the venue of
El P880, TX. 7SSG52793
criminal charges filed pursuant to section 32.41
s1m34s4 of the I’mal Code ‘ia the justice courts of Harris
County, tmd is the applicable article, if any.
ml fexss. sulle 700
mandatory or directory?
HPUS~D~.TX. 77002.3111
713mMSe6 2. Is it proper for a:justice of the peace in
Eartie Ccunty to do any of the following:
W5 Broadwsy. Suile 312 , ~.‘!-il)“‘A.ccept a-bad check charge/complaint fdi an
Lubbock. TX. 7S401.347’2
aow-747~5239 :, -offense wh%chth:occurred within ‘Barris County but
not withim his precinct? ’
43C4 N. Tenth. Suit0 B
MeAllen. TX. 7SYmlSa5
‘.:. ‘.~- (2) :&wept a’bad recheck charge/complaint for ‘an
r ,offense~%hich occnrred ‘with%% his precinct when
5wS524547 ,- defendautresides in, Barris County but not within his prec:!.nctP ’
200 Mm Plu. suite 400
Ssn Anmnlo. TX. 782052797
(3) rLccept a bad check charge/complaint
for an
512l225-4181 offense which occurred within his precinct but .defandarr: resides in another county?
An Equal OpporWW/
.t
fflrmtlvo ActIon Employ*r Your request for an opinion is accompanied by a brief which also
dfacuases the eonatitutionality of .artlcles 4.12 and 45.22.

Article 45622 of. the Code of Criminal Procedure determines the venue of criminal charge8 filed in the justice courts of Darris County for ~the offense of issuing a bad check under sectlon 32.41 of the Penal Code, and its provisions are mandatory. Except as provided if a justice of the pcwce ie disqualified. it is not proper for a justice
Honorable ,Mike Drincoll - :?age 2 (JH-190)

of the peace in Harris Cowty to accept such a bad check case when the offense does not occur rdthin his precinct, but it is proper, regardless of the residema, of the defendaut. vhm the offense does occur within his preclact.

Section 32.41 of the Penal Code lists the elements that
constitute the offowe of issuance of a bad check and provides that such an offense is a Class C Msdewanor. A Class C Misdemeanor is punishable only by a fins not to exceed $200, vhich punishment conforms to the constitutional and ltatutory jurisdiction of the justice court in this stwe. Article 0, rection 19, of the Texan Constitution provides in ptrt that

Justices of the :Peace shall have jurisdiction in criminal matters >f all cases where the penalty or fine to be woei by law may not be more than for two hundred dollarr . . . .

Article 4.11 of the Code of Criminal Procedure specifies that justices of the peace have jurisdiction in criminal cases where the fine to be imposed by law may not exceed $200. Accordingly, the offense of issuance of a bad check under eection 32.41 is vithin the subject matter jurisdiction of the justice courts.

    Venue does        not    lisdt      or affect        the   jurisdiction       that     is

prescribed by the constitwion and by statute for the justice court.
“Venue ,” as applied to ,criminal cases. means the place in which prosecutions are to begin, uhile “jurisdiction” means the power of the
court to hear and determiuo the case. The terms are not syoonymotiS~
See Martin v. State, 385 8.U.2d 260 (Tax. Grim. App. 1964); Bradley v. saringen. 525 S.W.Zd 28Cm(Tex. Civ. App. - Eastland 1975. no writ); Attorney General Opinion D-1026 (1977). The Texas Constitution gives the legielaturc pouer~to fir.venue and the courts pouer to change
venue in the manner providedby
law. Article III, section 45. of the
constitution atates that ,~:he “power to change the venue in civil and
criminal cases shall be vwted in the courts, to be exercised in such
manner as shall be proviclcd by law; and the Legislature shall pass laws for that puipose.”

   We believe      that   articles    4.12    and 45.22        are merely       venue

requirements for criminal cases within the jurisdiction of the justice courts , including the off,mse of immuing bad checks under section 32.41 of the Penal Code. Article 4.12 establishes justice court venue for misdemeanor cases ucrpt to the extent that, in each of the several counties in the state which have a population of at least 225,000. article 45.22 fires venue in the justice courts. Hence article 45.22, rather ttun article 4.12. is applicable in Earris County. See Bradley v. lpearingen, B; Attorney General opinion E-1026. Article 45.22 prcvides as follows:

0. 831

Ilonorable Mike Driscoll - Page 3 (Jn-190)

Sec. 1. No p’crson shall
ever be tried in any
justice precinct court unless the offense with
which he was ‘::larged was colPlnitted in such
prscinct . Provided,
however, should there be no
duly qualified justice precinct court in the
precinct where llulcb offense was emitted, then
the defendant ohall be tried in the justice
precinct next adjacent which ry have a duly
qualified justice court. And provided further,
that if the justice
of the peace of the precinct
in which the offense vaa~comitted
is disqualified
for any reason for trying the case, then such
defendant may t,r, tried in some other justice
precinct within r:he county.

Sec. 2. No constable shall be alloved a fee in any misdemeanor t:rise arjsing in any precinct other than the one for which he has been elected or appointed, exccrt through an order duly entered upon the mlnut’es of the county commissioners court.

Sec. 3. Any justice of the peace. constable or deputy constsblc violating this Act shall be punished by a floe of not less than $100 nor more than $500.

Sec. 4. The provisions of this Article shall apply only to counties having a population of 225,000 or over’according to the last preceding federal census.

The language of article 45.22 indicates that its venue’provisions
are mdatory rather than l@zalssive , and requires that a suit on the issuance of a bad check bll filed in the urecinct in which the offense vas colpitted. See Allietl Artists Pictuies Corp. v. Transcontinental Theatres, Texas.-&.- 57.1 S.U.2d 871, 872 (Tu. Civ. App. - Sastland 1978, writ diam’d); Attorcay General Opinion E-1026.

A change of venue us~lly means changing the place of trial from
one county to another. Chapter 31 of the Code ~of Criminal Procedure provides for the change of venue to another county to secure an impartial trial on motion of the court or on motion of the defendant in either a felony caee or a misdemeanor case punishable by confinement. See V.T.C.S, arta. 31.01; 31.03(a). The Texas statutes do not provide%r change of venue in cases within the jurisdiction of the justice courts. nalu!ly, cases which are not punishable by confinement. However, the United States Supreme Court has held that an individual has en inhe::unt right to a chsnge of venue if he demands Honorable Hike Drlscoll - ?‘lgc 4 (JM-190)

e jury trial cod if it spp~ars that an impartial jury and a fair trial
csnnot be obtainedIn the county. See Irvin v. Dowd. 81 S.Ct. 1639 (1961). At a time when the! Texas statute8 providing for a change of venue were limited to felony caees vith one exception. a federal district court held that, under the due process clause of the 14th Amendment, It was the dut:r of the Texas judiciary to provide a fair trial by an impartial jur:f to a person charged with a misdemeanor punlsbable by confinement , even if to do so the court must grant a change of venue that wntravenes state statutes. See Hisson V.
;a$~, 232 P.Supp. 539 0.D. Tex. 1964). aff’d. 364 F.2dl (5th Clr.
.

   We believe      that.   if presented   with the issue.       the courts would

find that every person accused of a criminal offense has a constitutional right to a t.rlal by an impartial jury regardless of the punishment which may be ac:N,rded or the serious or petty nature of the offense. See also Tex. Coast. art. I, (10. It i# our opinloa that, in the counties where it d.s applicable, article b5.22 fixes mandatory venue for trial in the jmtice court in the precinct in which a Class
C Misdemeanor is comitted. We believe tbat the courts vould find
that a defendant who demands a jury trial has a constitutional right to an impartial jury and 1:~ a change of venue if it is necessary for that purpose.

  In answer to the first         part of your second question,             it is not

proper for a justice of the peace in Harris County to accept a bad check case when the offense did not occur within his precinct. Tbe mandatory provisions of article 45.22, require that the complaint be filed in the precinct where the offense occurred unless, of coarse, the justice of the peace j.r. that precinct is disqualified. We answer the last two parts of your second question in the affirmative. It is proper for 8 justice <If the peace to accept a bad check charge/complaint in both of those situations. Tbe defendant’s residence ie not significrpt where article 45.22 determines venue. In each of the last two situations, the offense occurs vfthin the precinct of the justice o:F the peace in question and venue is proper in that precinct.

Tbe answers to the Ilpecific questions which you asked about
articles 4.12 end 45.22 io not appropriately include enswers to unrelated questions and therefore , we express no opinion on AUK other potential constitutlonel ismes discussed in your brief.

SUHMARY

Article 45.22 3f the Code of Criminal Procedure is applicable jn Harris County and provides mandatory venue requirements for charges filed in the justice cow(:a for issuing a bad check under Hoaornble Mike Driscoll - Piige 5 (M-190)

section 32.41 of the Penal Code. Except *a
provided if n justice of the peace is
disqualified, vwue for misdemeanors in the
justice courts it. Rarris County is limited to the
precinct lo wbic’n the offense occurs, regardless
of the residence of the defendsnt.

vJ I n MATTOX
Attorney General of Texas

TOMGREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorn?:? General

Prepared by Nnncy Sutton
Assistant Attorney General

APPROVED:
OPINIONCOI4WlTEE

Rick Gilpin. Chairman
David Brooks
Colin C*rl
Susan Gnrrison
Jim Moellinger
Nancy Sutton