Does a Texas district attorney have to appear when a court modifies an emergency protective order?

Plain-English summary

The Nueces County District Attorney asked the AG whether he has a duty, or even the authority, to represent the State before a municipal court when that court's judge sits as a magistrate to hear a motion to vacate and suspend an emergency protective order. Emergency protective orders come from Code of Criminal Procedure article 17.292, which lets a magistrate issue one after a defendant's arrest for an offense involving family violence or for certain trafficking, sexual assault, or stalking offenses, and provides for modifying the order after notice to each affected party and a hearing. The DA's concern was a modification proceeding pending in municipal court.

The AG first addressed the municipal-court setting. Ordinarily, prosecutions in municipal court are conducted by the city attorney or a deputy (or a county attorney who wants to). But article 17.292 grants authority to a magistrate, not to the judge of any particular court, and the Code designates many officials as magistrates, including municipal judges. When a municipal judge acts as a magistrate, the judge's functions are the same as those of other magistrates (Brown v. State; Ex parte Clear). So the limits that apply to municipal-court prosecutions do not bear on a municipal judge acting as a magistrate under article 17.292.

The AG then looked at the statute itself. Article 17.292 lets a magistrate issue an emergency protection order on the magistrate's own motion or at the request of the victim, the victim's guardian, a peace officer, or the attorney representing the state, and subsection (j) lets the issuing court modify the order, after notice to each affected party, on certain findings. Although a district attorney who requested the order is likely to get that notice, nothing in subsection (j) imposes a duty on a district attorney to be involved in a modification proceeding. The plain language permits, but does not require, the DA who requested the order to appear.

Finally, the AG addressed article 2.01, the source of the DA's worry. Article 2.01 requires a district attorney to represent the State in all criminal cases in the district courts of the district, and in criminal proceedings before an examining court in the district when notified and not prevented by other official duties. That duty would attach only if a modification proceeding is a criminal proceeding before an examining court. The AG concluded it is neither. Texas courts treat an article 17.292 emergency protective order as civil in nature and not criminally punitive, with the primary purpose of preventing domestic violence and protecting victims (Ex parte Necessary; Harris v. State; Lopez v. Occhiogrosso), so a modification proceeding is not a criminal proceeding. And a magistrate sits as an examining court when inquiring into a criminal accusation (article 2.11); the modification findings (unworkability, increased victim risk, danger to a protected person) do not inquire into the underlying accusation (In re State ex rel. Munk), so the magistrate is not acting as an examining court. The AG also noted the requester's two cited cases (Cook v. Sheppard and Bitner v. State) addressed the earliest scope of an examining court and were inapposite once the defendant has been arrested and an order already issued. The bottom line: article 17.292 permits but does not require the district attorney to appear at such a modification proceeding.

What this means for you

This describes what the opinion holds. It is the AG's 2021 reading; statutes and rules can change, so confirm current law before relying on it.

District attorneys and their offices

The opinion treats appearance at an article 17.292 modification proceeding as permitted, not mandatory. The AG found no duty under article 17.292 itself and none under article 2.01, because the proceeding is civil and not before an examining court. (Assistant prosecutors' authority follows the DA's, under Government Code § 41.103(b).)

Municipal judges sitting as magistrates

The opinion frames the municipal judge's role under article 17.292 as that of a magistrate, with the same functions as other magistrates, so the usual municipal-court prosecution rules do not govern who appears.

Family-violence victims and advocates

The opinion characterizes the emergency protective order as civil, aimed at preventing domestic violence and protecting victims. It addresses who may appear for the State at a modification hearing; it does not change the protections an order provides.

Common questions

Q: Must a Texas DA appear when an emergency protective order is modified?
A: No, per the AG. Article 17.292 permits but does not require the district attorney to represent the State at a proceeding to modify the order before a magistrate.

Q: Why doesn't the municipal-court prosecution rule decide it?
A: Because article 17.292 gives authority to a magistrate, not to a particular court, and a municipal judge can act as a magistrate. The AG said the rules limiting who prosecutes in municipal court do not bear on a magistrate acting under article 17.292.

Q: Is a proceeding to modify the order a criminal case?
A: No. The AG noted Texas courts treat an article 17.292 emergency protective order as civil, not criminally punitive, so a modification proceeding is not a criminal proceeding for purposes of article 2.01.

Q: Is the magistrate acting as an examining court when modifying the order?
A: No, per the AG. A magistrate sits as an examining court when inquiring into a criminal accusation, and the modification findings do not do that. So the duty in article 2.01 does not attach.

Q: Can the DA still appear if the office wants to?
A: Yes. The opinion says the DA may participate; it is permitted, just not required.

Background and statutory framework

Code of Criminal Procedure article 17.292 lets a magistrate issue an emergency protective order after an arrest for family violence or certain trafficking, sexual assault, or stalking offenses, on the magistrate's own motion or at the request of the victim, a guardian, a peace officer, or the attorney representing the state (art. 17.292(a), (b)), and lets the issuing court modify the order after notice to each affected party on findings about unworkability and victim safety (art. 17.292(j)). Magistrates are listed in article 2.09 and include municipal judges; a municipal judge acting as a magistrate has the same functions as other magistrates (Brown v. State; Ex parte Clear). Under art. 45.201(a), municipal-court prosecutions ordinarily go to the city attorney.

Article 2.01 sets the district attorney's duties, including representing the State in criminal cases in district courts and in criminal proceedings before an examining court when notified. Government Code § 43.148 gives the Nueces County District Attorney the powers and duties of other district attorneys but not authority to represent the State in criminal cases in municipal court, and § 41.103(b) makes assistants' authority derivative. Applying "may" and "shall" under Government Code § 311.016, the AG concluded the modification proceeding is civil (Ex parte Necessary; Harris v. State; Lopez v. Occhiogrosso) and not before an examining court, which under article 2.11 sits to inquire into a criminal accusation (In re State ex rel. Munk).

Citations and references

Statutes:

• Tex. Code Crim. Proc. art. 17.292 (emergency protective orders; modification)
• Tex. Code Crim. Proc. arts. 2.01, 2.09, 2.11, 45.201(a) (DA duties; magistrates; examining court; municipal prosecution)
• Tex. Gov't Code §§ 43.148, 41.103(b), 311.016 (DA powers; derivative authority; "may"/"shall")

Key cases:

• Brown v. State, 118 S.W. 139 (Tex. Crim. App. 1909) (a judge sitting to inquire into a criminal accusation sits as a magistrate holding an examining court)
• Ex parte Necessary, 333 S.W.3d 782 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (article 17.292 emergency protective order is civil, not criminally punitive)
• Lopez v. Occhiogrosso, No. 14-17-00324-CV, 2019 WL 347336 (Tex. App.—Houston [14th Dist.] Jan. 29, 2019, no pet.) (primary purpose is preventing domestic violence and protecting victims)
• In re State ex rel. Munk, 494 S.W.3d 370 (Tex. App.—Eastland 2015, orig. proceeding) (purposes of an examining trial)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0385
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0385.pdf

Original opinion text

September 13, 2021

The Honorable Mark A. Gonzalez
Nueces County District Attorney
901 Leopard, Room 206
Corpus Christi, TX 78401-3681

Opinion No. KP-0385

Re: Authority of a district attorney to represent the State in litigation over an emergency protective order under Code of Criminal Procedure article 17.292 issued by a municipal judge sitting as a magistrate (RQ-0400-KP)

Dear Mr. Gonzalez:

You ask whether you, as Nueces County District Attorney, "have the duty [or] the authority to represent the State before a municipal court when the judge of that court is performing her duties as a magistrate hearing a Motion to Vacate and Suspend Emergency Protective Order" issued under article 17.292 of the Code of Criminal Procedure.¹ Article 17.292 authorizes a magistrate to issue an emergency protective order after a defendant's arrest for offenses involving family violence or offenses under the Penal Code regarding trafficking, sexual assault, or stalking. TEX. CODE CRIM. PROC. art. 17.292(a). The article also provides for modification of such an order "[a]fter notice to each affected party and a hearing." Id. art. 17.292(j).

Authority of the Nueces County District Attorney in Municipal Court

Your request letter suggests your concern is prompted because of a modification proceeding in municipal court. See Request Letter at 1; Brief at 5. As you recognize, "[a]ll prosecutions in a municipal court shall be conducted by the city attorney of the municipality or by a deputy city attorney" or a county attorney desiring to do so.² TEX. CODE CRIM. PROC. art. 45.201(a). However, article 17.292 grants authority to a magistrate, not to the judge of any particular court. Id. art. 17.292(a). The Code of Criminal Procedure designates numerous officials and judges as magistrate, including municipal court judges. See id. art. 2.09. When acting as a magistrate of an examining court, the municipal court judge's "functions as a magistrate are the same as those of the judges of the county, district, Supreme, or Court of Appeals, when they sit as magistrates to hold an examining trial." Brown v. State, 118 S.W. 139, 144 (Tex. Crim. App. 1909) ("When a justice sits for the purpose of inquiring into a criminal accusation against any person, he sits, not as a justice of the peace, but as a magistrate, and the court which he then holds is not a justice's, but an 'examining,' court."); see also Ex parte Clear, 573 S.W.2d 224, 228 (Tex. Crim. App. 1978) (recognizing that justices of the peace acting as magistrates have "jurisdiction concurrent with that of a district judge who also seeks to exercise magisterial powers"). Thus, any requirements or limitations on municipal court proceedings have no bearing on a municipal court judge who acts as magistrate under article 17.292.

¹ See Letter & Brief from Honorable Mark A. Gonzalez, Nueces Cnty. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Mar. 15, 2021), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0400KP.pdf ("Request Letter" & "Brief," respectively). You also ask about the authority of your assistant district attorneys. See id. at 1. Because assistant prosecuting attorneys derive their authority from that of the district attorney, we do not consider their authority separately. See TEX. GOV'T CODE § 41.103(b).

² Section 43.148 of the Government Code provides for a district attorney for the 105th Judicial District in Nueces County. TEX. GOV'T CODE § 43.148. Under section 43.148, the Nueces County District Attorney "has the same powers and duties as other district attorneys and serves all the district, county, and justice courts of Nueces County" and "shall represent the state in criminal cases pending in those courts." Id. § 43.148(a), (b); see also id. §§ 41.001–.352 (providing generally for prosecuting attorneys), 43.002–.004 (Subchapter A, general provisions for district attorneys). Section 43.148 does not include authority for the Nueces County District Attorney to represent the State in criminal cases in municipal court. See id. § 43.148.

Proceedings Under Code of Criminal Procedure Article 17.292

Article 17.292's provision for an emergency protective order states that "[a]t a defendant's appearance before a magistrate after arrest for an offense involving family violence or [other specified offenses] the magistrate may issue an order for emergency protection on the magistrate's own motion or on the request of" the victim, the victim's guardian, a peace officer, or "the attorney representing the state." TEX. CODE CRIM. PROC. art. 17.292(a)(1)–(4); see also id. art. 17.292(b) (requiring the magistrate to issue an order for emergency protection when the person is arrested for a family violence offense that also involves serious bodily injury to the victim or the use or exhibition of a deadly weapon); see also TEX. GOV'T CODE § 311.016(1) ("'May' creates discretionary authority or grants permission or a power.").

Subsection (j) of article 17.292 authorizes the court issuing the emergency protective order to modify all or part of an order upon certain findings and after notice to each "affected party." TEX. CODE CRIM. PROC. art. 17.292(j). While such notice is likely to be given to a district attorney who requested the order for emergency protection, no language in subsection (j) imposes a duty on a district attorney to be involved in proceedings to modify an emergency protective order before a magistrate. See generally id. art. 17.292. Accordingly, the plain language of article 17.292 permits but does not require a district attorney who requested the order to appear in a proceeding to modify the order.

A District Attorney's Duty Under Code of Criminal Procedure Article 2.01

Nevertheless, you are concerned that article 2.01 of the Code of Criminal Procedure might require you to represent the State at an emergency protection order proceeding under article 17.292. See Request Letter at 1. Article 2.01 provides in relevant part that

[e]ach district attorney shall represent the State in all criminal cases in the district courts of his district . . . . When any criminal proceeding is had before an examining court in his district . . . , and he is notified of the same, and is at the time within his district, he shall represent the State therein, unless prevented by other official duties.

TEX. CODE CRIM. PROC. art. 2.01. Article 2.01 thus would impose a duty on a district attorney only if the proceeding to modify the emergency protective order is a criminal proceeding before an examining court in the district. See id. art. 2.01; see also TEX. GOV'T CODE § 311.016(2) ("'Shall' imposes a duty.").

1. Criminal proceeding

Texas courts have determined that an emergency protective order in article 17.292 is civil in nature and not criminally punitive. See Ex parte Necessary, 333 S.W.3d 782, 790 (Tex. App.—Houston [1st. Dist.] 2010, no pet.); see also Harris v. State, 164 S.W.3d 775, 781–82 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd). Its "primary purpose . . . is to prevent domestic violence and protect domestic violence victims." Lopez v. Occhiogrosso, No. 14-17-00324-CV, 2019 WL 347336, at *7 (Tex. App.—Houston [14th Dist.] Jan. 29, 2019, no pet.) (mem. op.). Accordingly, a court would likely conclude that a proceeding to modify an emergency protective order issued under article 17.292 is not a "criminal proceeding" for purposes of article 2.01.

2. An examining court

The Code of Criminal Procedure does not define "examining court" but describes its operation. Under article 2.11, a magistrate acts as an examining court "[w]hen the magistrate sits for the purpose of inquiring into a criminal accusation against any person." TEX. CODE CRIM. PROC. art. 2.11. By contrast, subsection (j) of article 17.292 authorizes the magistrate as the issuing court to modify all or part of an emergency protection order but only if the issuing court finds that "(1) the order as originally issued is unworkable; (2) the modification will not place the victim . . . at greater risk . . . ; and (3) the modification will not in any way endanger a person protected under the order." Id. art. 17.292(j)(1)–(3). None of these findings inquire into the underlying criminal accusation of the person. See generally In re State ex rel. Munk, 494 S.W.3d 370, 374–75 (Tex. App.—Eastland 2015, orig. proceeding) ("The traditional and statutory purposes of an examining trial are (1) to determine whether there exists sufficient evidence of guilt to hold a suspect accused of criminal conduct; (2) to determine whether bail should be allowed and if so, the amount of bail; and (3) to perpetuate the testimony of witnesses, including any voluntary statement the suspect may wish to make."). While a magistrate, acting as the issuing court, may modify an emergency protection order, the proceeding at which the court so acts does not constitute an examining court.³ Accordingly, a court would likely conclude that a proceeding to modify an issued emergency protective order is not a criminal proceeding before an examining court under article 2.01, and is rather a civil proceeding.

³ You refer us to two judicial opinions that disagree about "exactly when a magistrate is sitting as an 'examining court.'" Brief at 3 (citing Cook v. Sheppard, 45 S.W.2d 554, 554 (Tex. 1932) and Bitner v. State, 135 S.W.3d 906 (Tex. App.—Fort Worth 2004, pet. ref'd)). The two cases you cite involve the earliest reach of the scope of an examining court and the activities included therein. They are inapposite to a situation in which the defendant has already been arrested and an emergency protection order has already been issued. Thus, these two opinions about the earliest scope of an examining court do not speak to your question.

S U M M A R Y

Code of Criminal Procedure article 17.292 permits but does not require the district attorney to represent the State before a municipal court judge who is acting as a magistrate and hearing a motion to vacate and suspend an emergency protective order issued under article 17.292.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee