The Birds Nest - Training, Educational, & Opinions

Opinion on Elected Justice of the Peace Warrant Issuances

A Justice of the Peace (JP) for Precinct 2 of Hays County, issued a felony warrant from her venue, as the paper on the warrant claims such office. JPs do have magistrate powers within “his jurisdiction,” and original jurisdiction in matters of fine only.

There are times a JP may magistrate in a jail or some other forum, but typically not in venue for non-venue matters. The articles in part 45 of the Code of Criminal Procedures outline the scope of magistration for JPs and makes it clear the articles in 45 are a supremacy item to article 15 on the same code. Article 45 also has a component, only for JPs which allow them to file warrant when a matter has occurred in their view, but only for a matter able to be tried in such venue.

There is another part of the article where the JP must obtain complaint or approval from the District Attorney for a specific charge before the JP can issue the warrant for the charge.

JPs do have search warrant authority, that was cleared up in 1971 when a case of inappropriate jurisdiction was raised, but the matter did not clear up the scope of arrest warrants and what such office is actually allowed to magistrate and where. In the 1971 matter, the search of question was legitimately due to a JP function which resulted in a bigger finding; by process, is correct procedures.

A municipal judge would not magistrate an item above their office, in their venue; it would typically be done in a jail or a specific magistrate location. The same would be common practice for JPs too, they should also magistrate matters (if they are legally allowed), outside of their courtroom, in a designated area and process; however, being there is limited language which hinders the full scope of magistration, unlike bar card attorneys with practice time (municipal judges and higher), there are times a JP cannot conduct a magistration or issue a warrant.

If the magistrate is unable to issue warrant for items in view which are outside of the JPs office; how does a complaint change the scope to conduct the probable cause review?

It appears JP training teaches such office to accept the magistration or warrant of another judge and do not question the probable cause, but complete the magistration forms. This methodology is a contradiction of the language in code, where it is the duty of the magistrate to assure probable cause exists; which may include research.

We must remember the prestige of being a judge and the responsibility of the same; this is not a simple paper matter, there are intellectual components which must be applied, otherwise there is no need for such high standards.

An example of such intellectual judgement may be a “no bond,” matter on a form, the judge must consult with the issuing judge for any factors which may actually hold the “no bond,” and if not, prescribe a bond amount.

If a JP is taught not to use discretion in probable cause review, cannot issue warrants at the full power of the state in certain instances, needs permission for certain charges, has a venue of fine only, and has no required legal background; all of which being considerably different than all other judges; is it safe to conclude JPs cannot issue warrants for matters outside of their venue, as they do not qualify for the other component of magistration and conducting a magistration in venue creates a judicial record one is not legally entitled to posses, by process?

Take it a step further and generate an arraignment, which is a separate court setting, which is legally defined as a “court setting,” by default, implies original jurisdiction venue application.

What are your thoughts?