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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-4873
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
DAVID MILTON CONINE,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
(September 16, 1994)
Before POLITZ, Chief Judge, DAVIS and WIENER, Circuit Judges.
POLITZ, Chief Judge:
The government appeals the decision of the district court
excluding, in the prosecution of David Milton Conine, all evidence
resulting from execution of a state-issued search warrant. For the
reasons assigned we reverse and remand.
Background
In August 1992 a joint state and federal investigation
uncovered marihuana growing in a rural area of Red River County,
Texas. State law enforcement officers maintaining ground
surveillance discovered that Conine resided in a trailer house on

one of the four tracts of property surveilled.1 Sergeant Harold
O'Brien, the officer in charge of the state effort, and Assistant
District Attorney Jeff Starnes prepared an affidavit and
application for a search warrant. Starnes then sought a state
district judge to issue the warrant. Red River County lies within
two judicial districts, the 6th2 and the 102nd.3 Starnes first
sought Judicial District Judge Henry Braswell of the 6th District
who issued most of the search warrants for property in Red River
County. Judge Braswell was ill and unavailable. Starnes then
attempted to reach 102nd Judicial District Judge Leon Pesek in
Texarkana. Judge Pesek was presiding over a trial in New Boston
approximately 65 miles distant. Finally, Starnes contacted
District Judge Jim N. Thompson of the 62nd Judicial District4 in
adjacent Lamar County. Judge Thompson met O'Brien in Bogota in
Red River County. Finding the requisite probable cause, Judge
Thompson issued the warrant, crossing out the reference to Red
River County under his signature and inserting Lamar County.
The next day O'Brien and other state and federal narcotics
officers executed the search warrant. The search of Conine's
1The Department of Public Safety officers were misinformed by
the sheriff's office that Conine owned the entire property.
2The 6th Judicial District is composed of Fannin, Lamar, and
Red River Counties. Tex. Gov't Code Ann. § 24.106(a) (Vernon
1988).
3The 102nd Judicial District is composed of Bowie and Red
River Counties. Tex. Gov't Code Ann. § 24.204(a) (Vernon 1988).
4The 62nd Judicial District is composed of Delta, Franklin,
Hopkins, and Lamar Counties. Tex. Gov't Code Ann. § 24.164(a)
(Vernon 1988).
2

trailer and surrounding structures disclosed marihuana; marihuana
seeds; firearms and ammunition; over $18,000 in cash; a triple-beam
scale; and drug manufacturing equipment such as beakers, a heat
lamp, and a condenser. Additionally, 1,132 marihuana plants were
discovered growing on the adjacent land. Several weeks later a
survey revealed that the standing marihuana was on tracts of land
other than that on which Conine resided. Conine was taking
advantage of the isolated nature of the area to grow marihuana on
neighboring tracts of land.
Conine ultimately was charged in a five-count superseding
indictment with possession with intent to distribute marihuana
(Count 1), unlawful possession of firearms (Count 2), use or
carrying of a firearm during and in relation to a drug-trafficking
crime (Count 3), possession of a controlled substance with intent
to distribute (Count 4), and criminal forfeiture (Count 5). Conine
tentatively agreed to plead guilty to Counts 2 and 4 and agreed to
the forfeiture of certain property described in Count 5. At his
guilty-plea hearing Conine informed the court that he had not read
the search warrant. The search warrant was produced and a recess
was called. Following the recess Conine declared that he wished to
challenge the validity of the search and seizure and that he
desired to obtain new counsel. The district court set aside the
guilty plea and entered a plea of not guilty, pending a ruling on
the validity of the search warrant.
Conine moved to suppress, contending that the warrant was
defective. Following a suppression hearing the district court
3

determined that the search warrant was void ab initio under Texas
law because Judge Thompson did not have territorial jurisdiction to
issue a search warrant for property located in Red River County.
All evidence discovered pursuant to the warrant was suppressed.
This ruling mooted Conine's fourth amendment challenge. The
district court did not reach the government's contentions that
Conine lacked standing as related to properties adjacent to those
in which he had a possessory interest, and that the good faith
exception to the exclusionary rule should be applied. The
government timely appealed.
Analysis
We begin by noting that when a state officer secures a search
warrant from a state judge, Federal Rule of Criminal Procedure
41(a) is not the rubric for determining whether the search warrant
was issued by an appropriate court even when the seized evidence is
offered in federal court. State law controls in that instance.5
The constitution and statutes of Texas do not explicitly provide
the answer to the jurisdictional question posited, and there is a
dearth of jurisprudence.6 We approach today's interpretive task in
5United States v. Shaw, 920 F.2d 1225 (5th Cir.), cert.
denied, 500 U.S. 926 (1991); United States v. McKeever, 905 F.2d
829 (5th Cir. 1990) (en banc), cert. denied, 498 U.S. 1070 (1991).
6Today's decision is fully supported by the very recent
opinion of an intermediate appellate court which, in approving the
issuance of a search warrant by the same judge involving the same
counties as in case at bar, states in passing that neither Texas
cases nor statutes proscribe the practice. See Green (Othar Glen)
v. State, 880 S.W.2d 198 (Tex.App.--Texarkana, 1994).
4

that setting.7
The Texas Code of Criminal Procedure provides that a search
warrant is a written order issued by a magistrate.8 The title
"magistrate" has come to connote one having duties which are
judicial in nature.9 The Code identifies magistrates as including
justices of the supreme court and courts of criminal and civil
appeals, the judges of the district courts, county judges, judges
of the county courts at law, and justices of the peace.10 Although
"[i]t is the duty of every magistrate to preserve the peace within
his jurisdiction by the use of all lawful means . . .,"11 the Code
denotes no territorial limitations to a magistrate's jurisdiction
when issuing a search warrant. In absence of such limitations, the
Code is to be liberally construed to attain the objects of
prevention, suppression, and punishment of crime.12 When the Code
fails to provide a rule of procedure in a given case, the rules of
the common law apply.13
Most of the cases discussing the jurisdiction of magistrates
involve justices of the peace. When acting as a magistrate, the
7American Waste & Pollution Control Co. v. Browning-Ferris,
Inc., 949 F.2d 1384 (5th Cir. 1991).
8Tex. Code Crim. Proc. Ann. art. 18.01(a) (Vernon Supp. 1994).
9O'Quinn v. State, 462 S.W.2d 583 (Tex.Crim.App. 1970).
10See Tex. Code Crim. Proc. Ann. art. 2.09 (Vernon Supp. 1994).
11Tex. Code Crim. Proc. Ann. art. 2.10 (Vernon 1977) (emphasis
added).
12Tex. Code Crim. Proc. Ann. art. 1.26 (Vernon 1977).
13Tex. Code Crim. Proc. Ann. art. 1.27 (Vernon 1977).
5

jurisdiction of a justice of the peace is coextensive with the
limits of the county.14 In the seminal case of Hart v. State,
involving a justice of the peace, the court explained:
When sitting as an "examining court," the law nowhere
limits the magistrate, if he be a justice, to his
particular precinct; and, not being limited in this
regard, there is no reason why it was not intended that
he should hold the court in any portion of the county
most convenient for the purposes of the examination as to
the commitment or discharge of the accused, whether the
place of the sitting be in the precinct of another
justice, competent and qualified to act, or not.15
The territorial jurisdiction of a justice of the peace is his or
her precinct. The caselaw has extended the jurisdiction of
justices of the peace functioning as magistrates, however, to the
limits of the county. This would indicate that the territorial
jurisdiction of the justice of the peace depends upon which hat is
being worn, that of a justice of the peace or that of a magistrate.
We presume to suggest that such a rubric should be "equally so of
the judges of the supreme, district, and county courts."16
Although by title and office Judge Thompson is a district
judge of the 62nd Judicial District, when he issues a search
14See Ex parte Clear, 573 S.W.2d 224 (Tex.Crim.App. 1978) (en
banc); Gilbert v. State, 493 S.W.2d 783 (Tex.Crim.App. 1973);
Hinkley v. State, 119 Tex.Crim. 254, 45 S.W.2d 581 (1931) (justice
acting as magistrate issuing a search warrant); Hart v. State, 15
Tex.Ct.App. 202, 49 Am.Rep. 188 (1883) (justice acting as examining
court).
1515 Tex.Ct.App. at 226-27.
16Childers v. State, 30 Tex.Ct.App. 160, 16 S.W. 903, 906
(1891).
6

warrant, he is acting as a magistrate17 by virtue of his office as
a district judge,18 for Judge Thompson's "authority to act in the
capacity of magistrate is dependent upon his office."19 We must
therefore examine Judge Thompson's jurisdiction as a district judge
to assist in resolving the question of his jurisdiction as a
magistrate. His territorial jurisdiction as a magistrate will at
least encompass that of a district judge.
The Texas Constitution divides the state into judicial
districts.20 These judicial districts are further defined by the
counties encompassed.21 A district judge's duties, however, are not
limited to the district over which he or she presides. For
example, Article 1.23 of the Texas Code of Criminal Procedure
provides:
All justices of the Supreme Court, judges of the Court of
Criminal Appeals, justices of the Courts of Appeals and
judges of the District Courts, shall, by virtue of their
offices, be conservators of the peace throughout the
State. The style of all writs and process shall be "The
State of Texas" . . . .22
It is well recognized that district judges hold court for each
other
for
various
reasons
such
as
illness,
vacation,
17See State ex rel. Holmes v. Salinas, 774 S.W.2d 421 (Tex.App.
--Houston [14th Dist.] 1989, no pet.).
18See Tex. Code Crim. Proc. Ann. art. 2.09.
19State ex rel. Homes v. Salinas, 784 S.W.2d 421 (Tex.Crim.App.
1990) (en banc).
20Tex. Const. art. V, § 7.
21Tex. Gov't Code Ann. §§ 24.101 et seq. (Vernon 1988).
22Tex. Code Crim. Proc. Ann. art. 1.23 (Vernon Supp. 1994).
See also Tex. Const. art. V, § 12.
7

disqualification, or a buildup or backlog in a particular docket.23
The Texas Government Code provides for the transfer of cases
between district judges within the same county:
In any county in which there are two or more district
courts, the judges of those courts may, in their
discretion, either in term time or vacation, on motion of
any party or on agreement of the parties, or on their own
motion, transfer any civil or criminal case or proceeding
on their dockets to the docket of one of those other
district courts. The judges of those courts may, in
their discretion, exchange benches or districts from time
to time.24
At the time the search warrant was issued, Red River County had two
district judges with concurrent jurisdiction.25
More relevant to today's issue, not only may district judges
with concurrent jurisdiction transfer cases and exchange benches,
but all district judges may exchange benches. Article 5,
23See Tex. Gov't Code Ann. §§ 24.002 (substitute judge
appointed by the governor), 24.003 (substitute judges in counties
with five or more district courts for civil cases only), 74.052(a)
- 74.062 (assignment of judges under the Court Administration Act)
(Vernon 1988).
24Tex. Gov't Code Ann. § 24.303(a) (Vernon 1988). This
language might indicate that this is the only instance in which
district judges may exchange benches or transfer cases; otherwise
the statute would be superfluous when read in light of the Texas
Constitution. See infra. However, subsection (d) provides: "This
section does not limit the powers of the judge when acting for any
other judge by exchange of benches or otherwise." See also
Mitchell v. Cornwall, 314 S.W.2d 437 (Tex.Civ.App.--El Paso 1958,
no writ) (holding that the constitutional jurisdiction of a
district court cannot be taken away by legislative act).
25See Tex. Gov't Code Ann. §§ 24.106(c), 24.204(d) (Vernon
1988). Concurrent jurisdiction can also occur as follows: A judge
of District A may go into District B for the purpose of holding
court simultaneously with the regularly elected incumbent, both
conducting court for District B. See, e.g., Eucaline Medicine Co.
v. Standard Inv. Co., 25 S.W.2d 259 (Tex.Civ.App.--Dallas 1930,
writ ref'd).
8

section 11, of the Texas Constitution provides that the "District
Judges may exchange districts, or hold court for each other when
they may deem it expedient, and shall do so when required by law."
No formal action or order is required, nor, in many instances, is
it necessary for a docket sheet or minutes to show the reason for
the exchange of benches.26
Neither the Texas Constitution, Texas statutes, nor Texas
jurisprudence limits a district judge when issuing a search warrant
to the judicial district he or she has been elected to serve.27 The
Texas legislature has authority to fix the territorial jurisdiction
of district judges when they act as magistrates.28 It has invoked
26See Davila v. State, 651 S.W.2d 797 (Tex.Crim.App. 1983);
R.J. Gallagher Co. v. White, 709 S.W.2d 379 (Tex.App.--Houston
[14th Dist.] 1986, no writ). See also Mata v. State, 669 S.W.2d
119 (Tex.Crim.App. 1984). We note that the cases indicating that
no formality is required before benches are exchanged involve
districts where the courts had concurrent jurisdiction. See, e.g.,
Davila v. State, 794 S.W.2d 518 (Tex.App.--Corpus Christi 1990, no
writ) (Neuces County); Mata, 669 S.W.2d at 121 (Aransas, Bee, Live
Oak, McMullen & San Patricio Counties); Davila, 651 S.W.2d at 802
(Teague, J., dissenting) (noting that Pendleton v. State, 434
S.W.2d 694 (Tex.Crim.App. 1968) and Isaac v. State, 158 Tex.Cr.R.
540, 257 S.W.2d 436 (Tex.Crim.App. 1953), hold that no written
order is necessary for one duly elected district judge to preside
in the court of another, but do not discuss the requirements for a
valid transfer of jurisdiction).
27Tex. Const. art. V, § 7; Tex. Gov't Code Ann. §§ 24.001 et
seq., 24.101 et seq., 24.301 et seq. (Vernon 1988 & Supp. 1994).
Cf. Tex. Gov't Code Ann. § 74.094(d) (Vernon 1988) ("Judges of
district courts and statutory county courts may serve as masters
and magistrates of courts, other than their own, subject to other
provisions of law and court rules.").
28See Pierson v. State, 177 S.W.2d 975 (Tex.Crim.App. 1944)
(while district courts, their jurisdiction, and the qualifications
of district court judges are fixed by the Constitution, the
legislature is given exclusive authority to create such courts, to
fix their territorial jurisdiction, and to determine their number).
The ability of the legislature to fix the territorial jurisdiction
9

such power in other contexts, notably in article 18.04 of the Texas
Code of Criminal Procedure which requires that a search warrant be
executed by a "peace officer of the proper county."29 The
legislature also has limited the territorial jurisdiction of mayors
and recorders of incorporated cities or towns to issuing arrest
warrants within the county in which the arrest warrant is issued
statewide.30
District judges are empowered, by the Texas Constitution, to
function judicially throughout the state. District judges are
unique in that respect. We decline to read into Texas law a
limitation of a district judge's powers as a magistrate which does
not expressly exist in its positive law. We therefore hold that
District Judge Thompson was authorized to issue a search warrant
for property located in Red River County.
In response to Conine's suggestion that forum shopping may
result from today's ruling, we need only caution that such would be
subject to a fourth amendment challenge of the neutrality of the
of a district judge in no way detracts from a district judge's
ability to sit for a district judge of another district as provided
under Tex. Const. art. V, § 11. See Savage v. Umphres, 131 S.W.
291 (Tex.Civ.App. 1910) (a district judge of a district not
embracing the county in which the contested election was held,
sitting in exchange with the judge of that district, could try a
case; jurisdiction being conferred on the district court and not
its judge).
29Tex. Code Crim. Proc. Ann. art. 18.04(3) (Vernon 1977). See
Gilbert v. State, 493 S.W.2d 783 (Tex.Crim.App. 1973).
30Tex. Code Crim. Proc. Ann. art. 15.07 (Vernon Supp. 1994).
Arrest warrants issued by all other magistrates extend to any part
of the state. See Tex. Code Crim. Proc. Ann. art. 15.06 (Vernon
Supp. 1994).
10

magistrate. No such charge may lie herein -- the local district
judges were unavailable and the officer and assistant district
attorney sought a search warrant from the nearest available
district judge.31 Nor are we persuaded by Conine's contention that
district judges should be allowed to issue search warrants only
within those counties in which they are elected. District court
judges routinely serve in counties outside their district, a
practice upheld as constitutional.32
Concluding that the district judge of the 62nd Judicial
District had jurisdiction to issue the search warrant for property
located in Red River County, we REVERSE and REMAND for further
proceedings consistent herewith.
31We note that if a search warrant is requested to search for
and seize property or items constituting evidence of an offense of
constituting evidence tending to show that a particular person
committed an offense, only a judge of a statutory county court,
district court, the court of criminal appeals, or the supreme court
may issue the warrant; it cannot be issued by a justice of the
peace. Tex. Code Crim. Proc. Ann. art. 18.01(c) (Vernon Supp.
1994). An exception under subsection (i) does not apply to the
case at bar. The district court also took judicial notice that
Red River County currently has no statutory county court. Tex.
Gov't Code Ann. §§ 25.1961- 25.1970 (Vernon 1988).
32See, e.g., Reed v. State, 500 S.W.2d 137 (Tex.Crim.App.
1973).
11