
    DAY v. STATE.
    No. 16673.
    Court of Criminal Appeals of Texas.
    May 2, 1934.
    State’s Rehearing Denied Oct. 3, 1934.
    
      Joe L. Hill, Jr., of Henderson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for polluting a creek; punishment, a fine of $200.

This prosecution seems to have originated in the county court of Rusk county. The complaint was sworn to and filed in the office of the county clerk on September 8,1933. If any information was filed, based on said complaint, same does not appear in the record. It appears in the judgment that appellant refused to plead to the charge contained in the complaint because there was no information. The same matter was complained of in appellant’s motion for new trial.

Regardless of whether appellant had pleaded in person or not, the fact that no information was presented in the court below, and- none appears in this record, raised a jurisdictional question of which the court should have taken cognizance and of which we do so take knowledge. Our Constitution and statute make necessary as a predicate for the filing of a prosecution originally in the county court that there be an information, and the failure to file such information deprives the court below of its jurisdiction to try the case. Ethridge v. State, 76 Tex. Cr. R. 41, 172 S. W. 784; Norton v. State, 120 Tex. Cr. R. 557, 47 S.W.(2d) 610.

Because of the fact that there was no information and the court below was without jurisdiction to try the case in the form in which it appears in this record, the judgment will be reversed, and the cause remanded.

We make this order because of the fact that the prosecuting attorney may, if he desires, file an information upon the affidavit which appears in this record.

On Motion for Rehearing.

The state moves for rehearing, and calls attention to the provisions of chapter 85, Acts Regular Session, 42d Legislature, page 128 (Vernon’s Ann. C. C. P. art. 29), which undertakes to amend article 29, 1925, C. C. P., by providing that, in counties in Texas having no county attorney, misdemeanor cases may be tried upon complaint alone.

Section 17, art. 5, of our Constitution, dealing with prosecutions in county courts, says: “Prosecutions may be commenced in said court by information filed by the county attorney, or by affidavit, as may -be provided 'by law.” We know of no law in this state providing for prosecutions in county courts upon affidavit alone, -save in eases appealed from justice courts. Amended article 29, above referred to, makes no mention of filing complaints without information in county courts, and this court would be unwilling to sanction a departure so serious as this from the regular practice and procedure in this state, without express command from, the Legislature so to do. In this connection we might also observe that this court has no means of knowing what counties, if any there be in Texas, have no county attorney, and we, having no judicial knowledge of such situation, are of opinion that in any event a fact of such jurisdictional importance should necessarily be alleged in the affidavit, in order that the matter might be controverted upon the trial, and the facts thus developed be brought before this court. We also note that the complaint in this case was certified to as made before an assistant criminal district attorney. Section 21, art. 5, of our Constitution, allows counties having resident criminal district attorneys to not elect county attorneys. The evident reason for such exemption is that in such counties the criminal district attorney is in all things to act.as the county attorney; and it is expressly stated in the act creating criminal district attorneys in certain counties, which is chapter 354, Laws Regular Session of 42d Legislature, that the criminal district attorney of any such county shall have and exercise all powers, duties, and privileges within such county as are now conferred upon county attorneys.

The emergency clause of the act above referred to, amending article 29, supra, also says, “The fact that there are many counties in Texas having no County Attorney and no resident District Attorney by whom information may be filed,” etc. (Acts 1931, c. 85, § 2), clearly showing that in the mind of the author of said law same was not intended to have application in any county where there was a resident district attorney or a county attorney. As above stated, we are not. informed from this complaint that in Rush eounty, Tex., there is not a county attorney, but do learn from the record that there is in said county a resident assistant criminal district attorney, whose duty we believe it to be, under the law, to have filed information with the complaint.

For the reasons stated, the motion for re hearing by the state is overruled.  