Here are our thoughts on Justice of the Peace’s issuing Felony Warrants…. Let us know what you think
There are many case laws which have allowed JP’s to issue warrants at any level. Most, if not all of these case laws occurred before the 1999 legislative session. We could not find any referencing the modification in the new legislature, enacted in 1999. Although much of the statues to reference for JP’s have remained the same before 1999, the language change in 1999 raises new questions, of the actual intent to issue warrants above the fine only level. There was a time and need for those who were not required to have a law degree to perform such functions; however, as the State has developed, the need for such usage has diminished. This can be seen with the changes to the Constitutional County Court process; even then, those warrants would be misdemeanors, not felonies. If a County has a Statutory County Court at Law then the Constitutional Court has no criminal authority for misdemeanors, above a fine; unless expressly authorized by county within the statue.
Within the Texas Code of Criminal Procedures, the following statues are of importance:
Art. 45.012. ELECTRONICALLY CREATED RECORDS. (a) Notwithstanding any other provision of law, a document that is issued or maintained by a justice or municipal court or a notice or a citation issued by a law enforcement officer may be created by electronic means, including optical imaging, optical disk, digital imaging, or other electronic reproduction technique that does not permit changes, additions, or deletions to the originally created document.
(c) The court shall maintain original documents as provided by law.
Art. 45.014. WARRANT OF ARREST. (a) When a sworn complaint or affidavit based on probable cause has been filed before the justice or municipal court, the justice or judge may issue a warrant for the arrest of the accused and deliver the same to the proper officer to be executed.
(c) Chapter 15 applies to a warrant of arrest issued under this article, except as inconsistent or in conflict with this chapter.
NOTE: This is the section of the 1999 State Legislature Change, adding line item (c).
Art. 45.017. CRIMINAL DOCKET. (a) The justice or judge of each court, or, if directed by the justice or judge, the clerk of the court, shall keep a docket containing the following information:
Art. 45.102. OFFENSES COMMITTED IN ANOTHER COUNTY. Whenever complaint is made before any justice of the peace that a felony has been committed in any other than a county in which the complaint is made, the justice shall issue a warrant for the arrest of the accused, directed as in other cases, commanding that the accused be arrested and taken before any magistrate of the county where such felony is alleged to have been committed, forthwith, for examination as in other cases.
Art. 45.018. COMPLAINT. (a) For purposes of this chapter, a complaint is a sworn
allegation charging the accused with the commission of an offense.
Art. 45.019. REQUISITES OF COMPLAINT. (a) A complaint is sufficient, without regard to its
form, if it substantially satisfies the following requisites:
(b) A complaint filed in justice court must allege that the offense was committed in the
county in which the complaint is made.
Art. 45.103. WARRANT WITHOUT COMPLAINT. If a criminal offense that a justice of the peace has jurisdiction to try is committed within the view of the justice, the justice may issue a warrant for the arrest of the offender.
Art. 15.03. MAGISTRATE MAY ISSUE WARRANT OR SUMMONS. (a) A magistrate may issue a warrant of arrest or a summons:
- In any case in which he is by law authorized to order verbally the arrest of an offender;
- When any person shall make oath before the magistrate that another has committed some offense against the laws of the State; and
- In any case named in this Code where he is specially authorized to issue warrants of arrest.
Art. 15.26. AUTHORITY TO ARREST MUST BE MADE KNOWN. The arrest warrant, and any affidavit presented to the magistrate in support of the issuance of the warrant, is public information, and beginning immediately when the warrant is executed the magistrate’s clerk shall make a copy of the warrant and the affidavit available for public inspection in the clerk’s office during normal business hours. A person may request the clerk to provide copies of the warrant and affidavit on payment of the cost of providing the copies.
Art. 16.01. EXAMINING TRIAL. When the accused has been brought before a magistrate for an examining trial that officer shall proceed to examine into the truth of the accusation made, allowing the accused, however, sufficient time to procure counsel. In a proper case, the magistrate may appoint counsel to represent an accused in such examining trial only, to be compensated as otherwise provided in this Code. The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense, whether he be in custody or on bail, at which time the magistrate at the hearing shall determine the amount or sufficiency of bail, if a bailable case.
Per the Texas Texas Justice Court Training Center, First Edition, August 2020, Records Keeping and Reporting, found https://gato-docs.its.txstate.edu/jcr:fec5ca1c-88d3-4d4b-84ca-c47234a824fd/Recordkeeping%20and%20Reporting%20Deskbook.pdf
Page 1: “A justice of the peace must keep all papers related to magistration until the case gets filed in a higher court.
Once filed, the justice must send all original documents to the court that now has jurisdiction.”
Page 3: “c. Criminal Docket
A justice of the peace is required to keep a criminal docket, which must contain the following information:
• the style and file number of each criminal action,
• the nature of the offense charged,
• the plea offered by the defendant and the date the plea was entered,
• the date the warrant, if any, was issued and the return made,
• the date the examination or trial was held, and if a trial was held, whether it
was by a jury or by the justice,
• the verdict of the jury, if any, and the date of the verdict,
• the judgment and sentence of the court, and the date each was given,
• the motion for new trial, if any, and the decisions, and
• whether an appeal was taken and the date of that action.
Code of Criminal Procedure Art. 45.017.”
The questions, are the following:
- Where does the warrant get filed? Which court? A warrant has to be filed in a court and a JP is not a “court of record,” so tolling continues.
- If the warrant gets filed in Justice Court, then how can the magistrate see the suspected violator in his/her venue?
- How can a JP ever conduct an examining trial on a felony?
- If the JP cannot examine a felony, how can they lawfully issue a felony warrant?
- If a matter has to be within the jurisdiction of a JP to try in order to issue a warrant for the in view matter, why would a complaint at a higher level be different? This means, a JP could tell a peace officer what he/she saw and have the peace officer draw complaint and then the JP can issue the warrant, correct? Does that seem proper?
- Why does the three items to issue a warrant include “and,” and not “or,” under 15.03?
- If the records cannot move, then they must be filed in a Justice Court. Why is it so hard to obtain a history or docket of these types of warrant issuances from the JPs?
- If the JP was conducting magistrate functions above a fine only, should he/she be using a magistrate court record system, separate from the JP venue? Would this mean, it would be a county decision and needs determination for the JP to be authorized to perform magistrate above fine only duties?
- Why would a county want to use a JP with no law degree as a magistrate when law degree holders are available?
- Could the language in statue give a false sense of authority to appease those running for such office?