                       August 24, 1989




Mr. Pat D. Westbrook             opinion         NO.   JM-1089
Executive Director
Texas Commission for the Blind   Re: Enforcement of the sup-
P. 0. Box 12866                  port dog laws under chapter
Austin, Texas   78711            121 of the Human Resources
                                 Code (RQ-1749)

Dear Mr. Westbrook:

     You refer to the provisions of sections 121.003 and
121.004(a) of the Human Resources Code.     Section  121.003
prohibits,  inter alia    discrimination  against   visually
handicapped persons acbompanied by support dogs in their use
of public facilities.  Section 121.004(a) provides:

            (a) A person, firm, association, corpora-
        tion, or other organization, or the agent of
        a person, firm, association, corporation,   or
        other organization    who violates     Section
        121.003 of this chapter is guilty of a
        misdemeanor  and on    conviction   shall   be
        punished bv a fine of not le   than $100 nor
        more than $300.  (Emphasis sized.)

     You say that "there appears to be confusion  regarding
the appropriate   legal   jurisdiction  in enforcing   this
law . . . . It appears as though the City is not sure
whether the County should prosecute this matter, and the
County is not sure whether the City should prosecute   this
matter."  You ask our advice in this respect.

     Article V, section    19,   of        the    Texas      Constitution
provides in full:

           Justice of the peace courts shall have
        original jurisdiction in criminal matters  of
        misdemeanor cases punishable by fine only,
        exclusive jurisdiction in civil matters where
        the amount in controversy    is two hundred
        dollars or less, and such other jurisdiction




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Mr. Pat D. Westbrook - Page 2     (JM-1089)




        as may be provided  by law. Justices of the
        peace shall be ex officio notaries public.

The Code of Criminal Procedure, article 4.11, still provides
that justice courts have jurisdiction of misdemeanors "where
the fine to be imposed by law may not exceed two hundred
dollars."  This provision was codified into the current Code
of Criminal Procedure   in 1965. Acts 1965, 59th Deg., ch.
722, at 331.   At that time article V, section    19, of the
constitution still provided that justice court jurisdiction
extended to l'criminal matters of all cases where the penalty
or fine to be imposed by law may not be more than for two
hundred dollars."  S.J.R. 14, Acts 1985, 69th Deg., 8 7, at
3359. The current provisions     of article V, section    19,
expanding justice court jurisdiction to "misdemeanor    cases
punishable by fine only" were adopted in 1985. Id.

     We think that the current article V, section          19,
provision in question    indicates on its face that it is
self-enacting, i.e., that its provision    for justice court
jurisdiction over "misdemeanor    cases punishable    by fine
onlyto does not require further legislative action to be
given effect. The public notice given for that constitu-
tional amendment election ("The amendment would provide    for
the jurisdiction   of justice courts, which may have addi-
tional jurisdiction as provided by law.") as well as the
explanatory materials   prepared by the Legislative    Council
and House Study Group, support, we think, our conclusion.
that the provision   is self-enacting and controls over the
narrower jurisdictional   provision  still found in article
4.11 of the Code of Criminal Procedure.      a   Analyses   of
Proposed Constitutional Amendments Appearing on the November
5, 1985 Ballot, Texas Legislative Council Information Report
No. 85-3, August 1985 ("changes . . . redefine . . . justice
court jurisdictionU*); House Study Group Special   Legislative
Report, 1985 Constitutional    Amendments,  August   23, 1985
("The specific constitutional    grants of jurisdiction     to
justice-of-the-peace courts in Art. 5, sec. 19, would be
eliminated,   except for   original jurisdiction    over mis-
demeanors punishable by fine only . . . ."); see also, Gov't
Code § 27.031   (providing that justice courts have       "the
jurisdiction and powers provided by the constitution       and
other law").

     Thus, at the county level, justice of the peace courts
would have jurisdiction    over the offense described    in
section 121.004(a) of the Human Resources Code.




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Mr. Pat D. Westbrook - Page 3     (JM-1089)




     Also, at the county level, various criminal     district
courts and constitutional and statutory county courts would
have jurisdiction    over such offense depending     on   the
particular county   in question.   &=g Gov*t Code ch. 24,
subch. E   (particular criminal district courtsa;, 1;: ;;.;;z
(county   court    jurisdiction  generally),      .   - .
(particular county courts), 25.0003 (statutory county court
jurisdiction generally), 25.0031-25.2512 (particular statu-
tory county courts).

     The officer performing the criminal law duties of the
county attorney has responsibility for prosecuting offenses
in the above-mentioned courts of the county. Code Crim.
Proc. art. 2.02    (regarding county attorney's   duties  in
courts of the county "below the grade of district   court") .
In some counties these duties are performed by the officer
known as the criminal district attorney. w    Gov't Code ch.
44 (for duties of criminal district attorneys in particular
counties).  In a few counties they are performed       by a
district attorney. m      Gov't Code ch. 43 (for duties   of
district attorneys in specific counties: particularly,   for
example, g 43.180 regarding duties of Harris County District
Attorney to represent the state in criminal cases pending in
district and inferior courts of the county).

     Thus, in answer to your question, at the county  level
the prosecutor  responsible for representing the state in
justice of the peace courts, and in the criminal district
courts and constitutional and statutory county courts where
those latter courts also have jurisdiction over the offense
in question, would be responsible     for prosecuting  such
offense.1




     1. We also note that various particular         district
courts are given concurrent jurisdiction with county courts
in criminal matters.     In such cases the district  attorney
responsible   for  prosecuting    cases in such courts    may
prosecute the offense described in section 121.004(a) of the
Human Resources   Code.    m     Code Crim. Proc. art. 2.01
(district attorney#s duty to represent the state in district
court):    Gov't    Code     SS 24.101-24.276,  24.351-24.507
(regarding    particular     district   courts and   judicial
districts).




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Mr. Pat D. Westbrook - Page 4   (JM-1089)




     Also, in a few cities the city attorney would have
concurrent responsibility with the county level prosecutor
for prosecuting the offense in question. While the juris-
diction of municipal courts proper with respect to criminal
cases arising under state law is limited to offenses
punishable by a fine not to exceed $200 under section
29.003(b) of the Government Code, and such courts would thus
have no jurisdiction     over an    offense under    section
121.004(a), the legislature  has authorized certain munici-
palities to create a distinct tribunal called the municipal
court of record. In some instances the legislature       has
expanded the jurisdiction of such municipal courts of record
beyond that provided for municipal courts proper, which,  as
noted above, have no jurisdiction  over the offense you ask
about.

     For example, the city of Austin is authorized to create
municipal courts of record having concurrent     jurisdiction
with the justice court over criminal cases punishable      by
fine only. See Gov*t Code 5 30.323. Thus a municipal court
of record created in Austin could have jurisdiction over a
section 121.004(a) offense, and the city attorney or his
deputies or assistants would be responsible for prosecuting
such case. Gov't Code §§ 30.329, 30.490; see. e.0         id.
55 30.381, 30.383 (a Dallas Municipal Court of Record has
concurrent jurisdiction  with justice court over offenses
punishable by fine only).     But see id. SS 30.262-30.263
(Houston Municipal   Court   of Record   jurisdiction    over
offenses for which justice court has jurisdiction only where
punishable by fine not to exceed $200), 30.141, 30.143 (Fort
Worth Municipal Court of Record jurisdiction over offenses
under state law limited to that of municipal court proper).
See
my            id. ch. 30 (the provisions     for particular
municipal courts of record).

     We also understand that you are concerned about appar-
ent confusion among municipal police and county sheriff#s
office personnel as to their respective responsibilities for
responding to reports of violations of section    121.004(a).
A peace officer, whether a sheriff or sheriff's deputy or a
municipal police officer, has the duty to act to keep the
peace and to report to a magistrate u   offenses under state
law committed  within his jurisdiction.   Code Crim. Proc.
arts. 2.12, 2.13. Therefore it would be appropriate for a
person wishing to report a violation of section    121.004(a)
to contact the sheriff's office or, if the offense was
committed in an incorporated area, the municipal police.




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Mr. Pat D. Westbrook - Page 5    (JM-1089)




                       SUMMARY

           The prosecutor at the county level -- the
        county attorney or in some cases the criminal
        district attorney or district attorney -- has
        responsibility for prosecuting   the offense
        described in section 121.004(a) of the Human
        Resources Code, relating to discrimination
        against visually handicapped   persons using
        support dogs in public facilities. Where the
        offense is committed   in a city having     a
        municipal court of record with jurisdiction
        over such offense, the city attorney may also
        prosecute such offense in that court.




                                     JIM     MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

mu MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STKAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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