Does a county court at law judge who only handles misdemeanors share the duty to set up and fund a county probation department?

TX AG Opinion GA-0728: Do misdemeanor-only county judges help run the probation department?

Plain-English summary

The Harrison County Criminal District Attorney asked whether a judge of a county court at law whose jurisdiction is limited to misdemeanors counts among the judges described in Government Code section 76.002. Harrison County had one district court judge and one statutory county court judge, the County Court at Law of Harrison County, whose jurisdiction ran to Class A and B misdemeanors.

Section 76.002(a) provides that the district judge or judges trying criminal cases in each judicial district, and the statutory county court judges trying criminal cases in the county or counties served by the district, must establish a community supervision and corrections department (the adult probation department) and approve its budget and community justice plan. The question was whether a county court at law judge with only misdemeanor jurisdiction is one of those judges.

The opinion read the statute by its plain language. To be included, a judge has to preside over a statutory county court and try criminal cases in the relevant county. A misdemeanor is, by definition, a criminal offense, and the ordinary meanings of "criminal" and "case" are broad enough to take in misdemeanors. An earlier opinion had read "trying criminal cases" to mean cases involving the chapter 76 programs in which a judge would have an interest, and the request showed the Harrison County court at law regularly placed defendants under the department's supervision. Nothing in the text excluded a misdemeanor-only judge, and a court cannot write exceptions into a statute. So the opinion concluded that a court would likely construe section 76.002(a) to include a statutory county court judge with only misdemeanor jurisdiction who tries criminal cases in the district.

Currency note

This opinion was issued in 2009. 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.

Government Code chapter 76 and the local court-creation statutes may have been amended since 2009. Confirm current law before relying on anything below.

Who this opinion affected (as of 2009)

Statutory county court judges with misdemeanor-only jurisdiction: The opinion explained that they were likely among the judges who, under section 76.002(a), help establish a community supervision and corrections department and approve its budget and community justice plan.

District judges and county officials: The opinion described the duty in section 76.002(a) as shared between district judges and statutory county court judges trying criminal cases, which bears on who participates in setting up and funding the probation department.

The community supervision and corrections department: The opinion's reading affected which judges have authority over the department's budget and community justice plan in a county like Harrison.

Common questions

Does a misdemeanor judge really help run adult probation?
According to the opinion, likely yes. It concluded that a statutory county court judge trying criminal cases, even with only misdemeanor jurisdiction, is probably among the judges section 76.002(a) tasks with establishing and funding the department.

Why does it matter that misdemeanors are 'criminal cases'?
Because section 76.002(a) speaks of judges "trying criminal cases." The opinion explained that a misdemeanor is by definition a criminal offense, so a judge hearing misdemeanors is trying criminal cases within the statute's broad language.

Could the statute be read to exclude misdemeanor-only judges?
The opinion found nothing in the text or legislative history that excluded them, and noted that courts cannot write exceptions into a statute that the Legislature did not include.

Background and statutory framework

Harrison County had one district court (the 71st Judicial District) and one statutory county court (the County Court at Law of Harrison County), whose jurisdiction reached Class A and B misdemeanors (Tex. Gov't Code Ann. §§ 24.173(a), 25.1041 (Vernon 2004); 25.0003-.0004). Section 76.002(a) requires the district and statutory county court judges trying criminal cases to establish a community supervision and corrections department and approve its budget and community justice plan (id. § 76.002(a) (Vernon Supp. 2008)). A "statutory county court" is a county court created by the Legislature under article V, section 1 of the Texas Constitution (id. § 21.009(2) (Vernon 2004); Tex. Att'y Gen. Op. No. JC-0452 (2002)).

Construing the statute to give effect to legislative intent from its language (Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008); City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008)), and following an earlier reading of "trying criminal cases" as cases involving chapter 76 programs (Tex. Att'y Gen. Op. No. GA-0357 (2005)), the opinion noted that a misdemeanor is a criminal offense (Tex. Penal Code Ann. § 1.07(31) (Vernon Supp. 2008)) and that statutory county courts may charge costs in probation and deferred-adjudication cases (Tex. Gov't Code Ann. § 51.702(b) (Vernon Supp. 2008)). Because courts cannot create exceptions the Legislature omitted (HEB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627, 658 (Tex. 2007); Pub. Util. Comm'n v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988)), the opinion concluded a misdemeanor-only statutory county court judge is likely within section 76.002(a).

Citations

Statutes:

• Tex. Gov't Code Ann. §§ 76.002(a), 51.702(b) (Vernon Supp. 2008); 24.173(a), 25.1041, 21.009(2) (Vernon 2004); 25.0003-.0004, 311.011(b)
• Tex. Penal Code Ann. § 1.07(31) (Vernon Supp. 2008)

Cases:

• Leland v. Brandal, 257 S.W.3d 204 (Tex. 2008)
• City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008)
• HEB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627 (Tex. 2007)
• Pub. Util. Comm'n v. Cofer, 754 S.W.2d 121 (Tex. 1988)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0728
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0728.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

July 16, 2009

The Honorable Joe Black
Harrison County Criminal District Attorney
Post Office Box 776
Marshall, Texas 75671-0776

Opinion No. GA-0728

Re: Whether a judge of a statutory county court, the jurisdiction of which is limited to misdemeanor cases, is among the group of judges described in section 76.002 of the Government Code (RQ-0782-GA)

Dear Mr. Black:

You ask whether

a judge of a County Court at Law the jurisdiction of which is limited to misdemeanors, [is] as a matter of law among those, "... statutory county court judges trying criminal cases in the county or counties served by the judicial district ...", as stated in § 76.002, Government Code, and thus one of, "the judges described in § 76.002[.]"[1]

You explain that Harrison County (the "county") has one district court judge and one statutory county court judge. See Request Letter at 1; see also TEX. GOV'T CODE ANN. §§ 24.173(a) ("The 71st Judicial District is composed of Harrison County."), 25.1041 ("Harrison County has one statutory county court, the County Court at Law of Harrison County.") (Vernon 2004). You tell us that the jurisdiction of the county court at law "is limited to that of county courts, meaning, for our purposes, Class 'B' and 'A' misdemeanors." Request Letter at 1 (citing Texas Government Code sections 25.0003-.0004).

The focus of your inquiry is Government Code section 76.002. TEX. GOV'T CODE ANN. § 76.002(a) (Vernon Supp. 2008). It provides, in relevant part, that

[t]he district judge or district judges trying criminal cases in each judicial district and the statutory county court judges trying criminal cases in the county or counties served by the judicial district shall:

(1) establish a community supervision and corrections department; and

(2) approve the department's budget and community justice plan.

Id. (emphasis added). Specifically, you seek to understand whether the judge of a county court at law with jurisdiction over only misdemeanor cases, rather than felony or felony and misdemeanor cases, falls within the group of judges described in Government Code section 76.002(a). See Request Letter at 1-2.

Your question requires us to construe section 76.002(a). When construing a statute, the objective is to determine and give effect to the Legislature's intent, which is determined first by examining the language of the statute. See Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). A court will apply the "definitions prescribed by the Legislature and any technical or particular meaning the words have acquired." City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008) (citing Government Code section 311.011(b)). Otherwise, the statutory words will be construed according to their plain and common meaning, unless a contrary intent is apparent from the context in which the words are used or it leads to absurd results. See id. at 625-26. A court may also consider legislative history in construing a statute. See id. at 626 n.6 (citing Government Code section 311.023(3)).

In order for a county court at law judge to be included in the group of judges described in section 76.002(a), the judge must (1) preside over a "statutory county court" and (2) "try[] criminal cases in the county or counties served by the judicial district." TEX. GOV'T CODE ANN. § 76.002(a) (Vernon Supp. 2008). A "statutory county court" is defined, for purposes of section 76.002, as "a county court created by the legislature under Article V, Section 1, of the Texas Constitution." TEX. GOV'T CODE ANN. § 21.009(2) (Vernon 2004) (defining terms in title 2 of the Government Code); Tex. Att'y Gen. Op. No. JC-0452 (2002) at 2.

Chapter 76 does not define the phrase "trying criminal cases" and we find no other relevant statutory or common-law definition. This office, in a 2005 attorney general opinion, examined the meaning of the phrase "district judges trying criminal cases" under section 76.002(a). See generally Tex. Att'y Gen. Op. No. GA-0357 (2005). Considering the phrase in the context of chapter 76,[2] that opinion concluded that "'trying criminal cases' must refer to criminal cases that involve the programs created in chapter 76 such that a judge would have an interest in" the department established under section 76.002. Id. at 4. As evidenced by your Request Letter, a statutory county court judge with only misdemeanor jurisdiction may make decisions that involve chapter 76 programs. See Request Letter at 4 (explaining that, in 2008, the County Court at Law of Harrison County "ordered 266 defendants be placed under the supervision of the Harrison County" Community Supervision and Corrections Department and used various programs of the Department); see also, e.g., TEX. GOV'T CODE ANN. § 51.702(b) (Vernon Supp. 2008) (authorizing statutory county courts to charge court costs in cases including those "in which probation or deferred adjudication is granted"). In examining the phrase "criminal case" further, we observe that a misdemeanor is, by definition, a criminal offense and the ordinary meaning of the terms "criminal" and "case" are broad and encompass misdemeanors. See TEX. PENAL CODE ANN. § 1.07(31) (Vernon Supp. 2008) ("'Misdemeanor' means an offense so designated by law or punishable by fine, by confinement in jail, or by both fine and confinement in jail."); BLACK'S LAW DICTIONARY 402 (8th ed. 2004) (defining the term "criminal," when used as an adjective, as "[h]aving the character of a crime; in the nature of a crime [or] [c]onnected with the administration of penal justice "); id. at 228 (defining the term "case," to mean "[a] civil or criminal proceeding, action, suit, or controversy at law or in equity"). Thus, the phrase "statutory county court judges trying criminal cases" in section 76.002(a) is sufficiently broad to include those judges with criminal jurisdiction limited to misdemeanors.

In addition, nothing in the text of section 76.002(a) excludes a statutory county court judge who is trying criminal cases but who has criminal jurisdiction over only misdemeanor cases. See HEB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627, 658 (Tex. 2007) (explaining that when construing a statute, a court "cannot create exceptions where none appears to exist"); Pub. Util. Comm'n v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988) ("A court may not write special exceptions into a statute so as to make it inapplicable under certain circumstances not mentioned in the statute."). Finally, we find nothing in the context of chapter 76 or the legislative history of section 76.002(a) indicating that the Legislature intended to exclude statutory county court judges that try only misdemeanor cases from the group of judges set out in section 76.002(a). See, e.g., HOUSE RESEARCH ORG., BILL ANALYSIS, Tex. H.B. 1326, 79th Leg., R.S. (2005) at 2 ("Statutory county court judges would [under CSHB 1326] share [community supervision and correction department] duties with district court judges."). In sum, we think it likely that a court would construe section 76.002(a) to include a statutory county court judge with only misdemeanor jurisdiction who is trying criminal cases in the county or counties served by the judicial district.

SUMMARY

The judge of a statutory county court who is trying criminal cases in the county or counties served by the judicial district and who has jurisdiction over only misdemeanor cases is likely among the group of judges described in Government Code section 76.002(a).

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Christy Drake-Adams
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter at 2 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: The opinion addresses the difference between the phrase "trying criminal cases" as used in section 76.002(a) and a court "exercising criminal jurisdiction," as used in other sections of chapter 76, such as section 76.003(b)(6). See Tex. Att'y Gen. Op. No. GA-0357 (2005) at 4, 6 (explaining "the legislature intended some meaning for 'trying criminal cases' that is more narrow than criminal jurisdiction" and concluding that a judge trying criminal cases is one that, in examining a criminal issue, makes a decision that would involve a chapter 76 program or facility).]