Who prosecutes violations of a Texas water district's criminal rules?

Plain-English summary

Jeri Yenne, the Brazoria County Criminal District Attorney, asked a practical question: when a special water district adopts its own criminal rules, who is supposed to prosecute the people who break them? The question came up with the Commodore Cove Improvement District, a conservation and reclamation district created under the Texas Constitution that holds the powers and duties of a water control and improvement district. The district had adopted criminal regulations punishable by a fine of up to $500, and citations had been issued and filed in justice court.

The opinion laid out the framework. Chapter 51 of the Water Code lets a water control and improvement district adopt and enforce reasonable rules, which the courts are to treat as if they were a city's penal ordinances, and a violation is a Class C misdemeanor. Chapter 49 lets the district employ its own peace officers to make arrests on land, water, or easements the district owns or controls. But neither chapter says who is to prosecute those offenses.

To fill that gap, the opinion turned to chapter 45 of the Code of Criminal Procedure, which identifies the prosecutors in the two courts that hear Class C misdemeanors. In a justice court, prosecutions are conducted by the county or district attorney or a deputy. In a municipal court, they are generally conducted by the city attorney or a deputy city attorney, although the county attorney may represent the state in such prosecutions if the county attorney so desires. So the answer turned on a single fact: the court in which the citation or complaint was filed. The opinion also noted that, for Brazoria County, the criminal district attorney holds the powers and duties of a county attorney.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Brazoria County Criminal District Attorney (as the opinion described it): The opinion answered that the prosecuting entity depended on the court. In justice court the county or district attorney prosecutes, which for Brazoria County includes the criminal district attorney, while in municipal court the city attorney generally does.

The water control and improvement district (as the opinion held for them): The opinion confirmed that the district's chapter 51 rules are enforceable as if they were city penal ordinances and that violations are Class C misdemeanors. The district itself did not pick the prosecutor; that followed from the forum in which the case was filed.

City and county prosecutors (as the opinion described it): The opinion located each office's role by reference to the court, justice court versus municipal court, rather than by who enacted the rule.

Common questions

Who prosecutes someone who breaks a water district's rules in Texas?
According to the opinion, it depends on the court where the case is filed. Justice court prosecutions are handled by the county attorney, district attorney, or a deputy; municipal court prosecutions are generally handled by the city attorney.

Are a water district's criminal regulations actually enforceable?
Yes. The opinion explained that chapter 51 of the Water Code lets a water control and improvement district adopt rules the courts treat like a city's penal ordinances, and that a violation is a Class C misdemeanor.

Does the water district get to choose the prosecutor?
No. The opinion concluded that the proper prosecuting entity is determined by the court in which the citation or complaint is filed, not by the district.

What if the case is filed in municipal court instead of justice court?
The opinion stated that municipal court prosecutions are generally conducted by the city attorney or a deputy city attorney, though the county attorney may step in to represent the state if the county attorney chooses.

Background and statutory framework

The Commodore Cove Improvement District was created as a conservation and reclamation district under Article XVI, section 59 of the Texas Constitution, with the powers of a water control and improvement district under chapters 49 and 51 of the Water Code. Chapter 51 authorizes such a district to adopt and enforce rules treated as a city's penal ordinances, Tex. Water Code Ann. §§ 51.122, .127, .128 (West 2008), and makes a violation a Class C misdemeanor, id. § 51.241. Chapter 49 lets the district employ peace officers to make arrests on district property. Id. § 49.216(a)(1). Neither chapter names the prosecutor.

Because a Class C misdemeanor created by city ordinance is heard in both justice and municipal courts, the opinion looked to chapter 45 of the Code of Criminal Procedure. In a justice court, art. 45.101(a) provides that prosecutions "shall be conducted by the county or district attorney or a deputy." Tex. Code Crim. Proc. Ann. art. 45.101(a) (West 2006). In a municipal court, art. 45.201 assigns prosecutions to the city attorney, with the county attorney free to represent the state if desired. The opinion noted that the Brazoria County Criminal District Attorney's powers include those of a county attorney. Tex. Gov't Code Ann. § 44.120(b) (West 2004).

Citations

Statutes:

• Tex. Const. art. XVI, § 59
• Tex. Water Code Ann. §§ 51.122, .127, .128 (West 2008)
• Tex. Water Code Ann. § 51.241
• Tex. Water Code Ann. § 49.216(a)(1)
• Tex. Code Crim. Proc. Ann. art. 45.101(a) (West 2006)
• Tex. Code Crim. Proc. Ann. art. 45.201
• Tex. Gov't Code Ann. § 44.120(b) (West 2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0923
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0923.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 7, 2012

The Honorable Jeri Yenne Opinion No. GA-0923
Brazoria County Criminal District Attorney
111 East Locust, Suite 408A Re: Identity of the proper prosecutorial entity to
Angleton, Texas 77515 prosecute violations of criminal regulations enacted
by the Commodore Cove Improvement District
(RQ-1007-GA)

Dear Ms. Yenne:

You ask who is the proper prosecuting entity to prosecute violations of criminal regulations enacted by the Commodore Cove Improvement District ("the District").[1] You inform us that the District was created as a conservation and reclamation district under Article XVI, section 59 of the Texas Constitution, with the powers and duties of a water control and improvement district under chapters 49 and 51 of the Texas Water Code. Request Letter at 2. You further state that the district has adopted criminal regulations providing for punishment by fine of up to $500 and that citations have been issued and filed in justice court. Id. at 1, 3.

Chapter 51 of the Water Code authorizes a water control and improvement district to adopt and enforce certain reasonable rules and regulations, which the courts are to recognize as if they were penal ordinances of a city. TEX. WATER CODE ANN. §§ 51.122, .127, .128 (West 2008). An offense under chapter 51 is a Class C misdemeanor. Id. § 51.241. Chapter 49 of the Water Code authorizes a district to "contract for or employ its own peace officers with power to make arrests when necessary to prevent or abate the commission of ... any offense against the rules of the district when the offense or threatened offense occurs on any land, water, or easement owned or controlled by the district." Id. § 49.216(a)(1). However, neither chapter 49 nor chapter 51 identifies the person or entity who is to prosecute chapter 51 offenses.

Jurisdiction for a Class C misdemeanor created by city ordinance generally lies in both justice courts and municipal courts. See TEX. CODE CRIM. PROC. ANN. arts. 4.11 (West Supp. 2011) (justice court jurisdiction), 4.14 (municipal court jurisdiction); TEX. GOV'T CODE ANN. § 29.003 (West Supp. 2011) (municipal court jurisdiction). And chapter 45 of the Code of Criminal Procedure identifies the persons who are authorized to conduct prosecutions in justice courts and in municipal courts. See TEX. CODE CRIM. PROC. ANN. arts. 45.001-.203 (West 2006 & Supp. 2011). In a justice court, "[a]ll prosecutions ... shall be conducted by the county or district attorney or a deputy county or district attorney." Id. art. 45.101(a) (West 2006). In a municipal court, prosecutions are to be conducted by the city attorney or a deputy city attorney of the municipality, although the county attorney may, if the county attorney so desires, represent the state in such prosecutions. Id. art. 45.201; see also TEX. GOV'T CODE ANN. § 44.120(b) (West 2004) (providing that the powers and duties of the Brazoria County Criminal District Attorney include those of a county attorney).[2] Consequently, the proper prosecutorial entity to prosecute a violation of a District ordinance under chapter 51 of the Water Code will generally depend on whether the citation or complaint has been filed in a justice court or a municipal court.

SUMMARY

The proper prosecutorial entity to prosecute a violation of a water control and improvement district ordinance under chapter 51 of the Water Code will generally depend on the court in which the citation or complaint is filed. Prosecutions of such violations in justice court are to be conducted by the county attorney, district attorney, or deputy county attorney or district attorney. Prosecutions of such violations in municipal court are generally to be conducted by the city attorney or deputy city attorney.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Jeri Yenne, Brazoria Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1, 3-4 (Oct. 17, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] We do not address the court's authority to appoint a prosecutor under specific circumstances. See TEX. CODE CRIM. PROC. ANN. art. 45.031 (West 2006) (court's authority to appoint an attorney pro tem).