The Birds Nest - Training, Educational, & Opinions

OPINION: Can Texas Justice of the Peace(s) Issue Warrants at Any Level?

It may be a curious question to a long stemming practice, in which elected Justice of the Peace(s) (JP) have issued warrants of arrests for all levels of offenses, but there have been some interesting developments in Texas Statue which may not of been reviewed.

You ask any JP and he/she will reference you to Article 15 of the Code of Criminal Procedures. So, we looked and we noticed Article 15.03:

Art. 15.03. MAGISTRATE MAY ISSUE WARRANT OR SUMMONS. (a) A magistrate may issue a warrant of arrest or a summons:
1. In any case in which he is by law authorized to order verbally the arrest of an offender;
2. When any person shall make oath before the magistrate that another has committed some offense against the laws of the State; ——-AND——
3. In any case named in this Code where he is specially authorized to issue warrants of arrest.

Acts 2011, 82nd Leg., R.S., Ch. 248 (H.B. 976), Sec. 1, eff. June 17, 2011.

To our surprise, it appears there is an AND between items 1, 2, AND 3.

It does not read 1, 2, OR 3.

So, this must create an obligation to a JP, that he/she must be able to order arrest of an offender in order to issue a warrant. The latest change to 15.03 was in June 2011.

Chapter 45.103 reads as follows:

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.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Renumbered from Vernon's Ann.C.C.P. art. 45.15 and amended by Acts 1999, 76th Leg., ch. 1545, Sec. 57, eff. Sept. 1, 1999.

One has to wonder, if the JP cannot try the matter, can he/she lawfully order the arrest of the person for a crime higher than the venue? We would assume this may mean they have citizen status. He/She may be able to make a citizen arrest, but may not be able to order the arrest.

If a JP is out and about in the community and witnesses a crime they can try, they can issue a warrant for it, but what if it is a crime they cannot try? It seems they, like the citizens of Texas, would need to go file a complaint.

Article 45.014 seems to require a mode of supremacy within the Justice Court. It seems everything must default back to Article 45, even Chapter 15 of the Code of Criminal Procedures. Such Chapter seems to already have an “AND,” and not an “OR,’ in a key part of code.

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.

So, if someone goes to a Justice Court for a warrant, does the Justice act as a magistrate? Where does the warrant get filed? It seems, the practice of going to a JP for warrant issue creates an obligation of court functions. The warrant has to be placed somewhere. Where would one place it?

Justice Courts are not and cannot be a “court of record.” This means, the “tolling,” of an offense may not stop. A Municipal Court can be a “court of record,” which can stop “tolling,” of the statue of limitations.

Do the stipulations change when one is assigned county magistrate duties by the county? It may, but if the JP is not authorized by the county to perform magistrate duties of the county, then what authorization does a JP have in his/her own venue to issue warrants? Where would those warrants need to be placed?

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.

Article 15, 26 of the Code of Criminal Procedures seems to reference the need of the issuing magistrate to retain such warrant in their system of records.

Would a JP have a different system of record than his/her court records? If the JP was assigned magistrate duties of the county then the documents would be filed in the magistrate court for the county, but how can it be, when they are not assigned the duty, are a county employee, in a county office, and have their own venue where they reviewed and signed the warrant?

Below is a 2015 flowchart from the Texas Judicial Branch website:

At the bottom of the page, the first item shows Justice Courts not to be court of records and also show most municipal courts not to be courts of record. As you also see, the court is authorized to perform magistrate functions. So, does the venue of magistrate duties matter? We believe it may be an important indicator to whether there is a proper warrant or not. What does the JP do? Take of the “venue,” cap and put on the “county magistrate,” cap? Without approval by the county?

We reached out to the Justice of Peace Training Center at Texas State University in San Marco, Texas and they claim JPs can magistrate at any level. They even said Mayors can be magistrates. The latter is correct, but there are many regulations limiting the actual power. The 1999 and 2011 updates to Texas Legislation seems to leave a lot of unanswered questions. Most of the cases cited in case law about JP duties are before 1999. Before the statue changes occurred.

We have sent a request to the Criminal Jurisprudence Committee for the State of Texas about the matter. We will update if we hear back.

Although Article 14 of the Code of Criminal Procedures (which has not been updated since 1965 or 1967) says the following:

Art. 14.01. OFFENSE WITHIN VIEW. (a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.
(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967, 60th Leg., p. 1735, ch. 659, Sec. 8, eff. Aug. 28, 1967.

Art. 14.02. WITHIN VIEW OF MAGISTRATE. A peace officer may arrest, without warrant, when a felony or breach of the peace has been committed in the presence or within the view of a magistrate, and such magistrate verbally orders the arrest of the offender.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

There seems to , still, be a connection to article 45.103, which requires it to be a matter one can try, when its witnessed by a JP. Obviously a peace officer can arrest a felony without a warrant, but to say that all magistrates are created equal seems unlikely; especially since only a limited amount of magistrates are NOT lawyers, as defined by the State Bar of Texas. If a peace officer witnesses the act, why would he/she need a magistrate to verbally order? A Statutory County Court Judge and District Court Judge; can obviously order such arrests in his/her view, but a JP? It may have to be a matter which can be tried, and such matter can be investigated by the peace officer for enhancements?

In order to “order,” an arrest, the magistrate must be able to file the warrant by his/her own word, correct? What is the difference in only being able to issue warrants in view of something that can be tried by the magistrate and when something cannot be tried? We believe that specific language limits the ability to “order,” a magistrate.

We have submitted inquiry to the Criminal Jurisprudence Committee for the State of Texas. If they answer, we will update. In the interim, we believe there is a conflict on depth, because of the 1999 and 2011 law changes. We have found no case law addressing the issues we are raising.