CCP 4.05 and 4.06 give jurisdiction for felonies and misdemeanors that are lesser includeds. But 4.06 says "court shall hear and determine the case as to any grade of offense included in teh indictment, whether the proof shows a felony or a misdemeanor."

We had an indictment for family violence assault, enhanced to a felony. I abandoned the family violence language, because it was not a family member as per statute and asked the judge to transfer it to county court, thus the indictment is no longer a felony indictment, but now a misdemeanor.

The judge wants to hear the case. Can the district judge sit for trial on a misdemeanor case in his court--because without the enhancement the indictment only alleges a misdemeanor? If he does, it is a six or 12 person panel?

Technically, he can transfer it down and then the defense can have it transferred right back per 4.17 because in that county there is no attorney sitting as county judge, but then it would be the county attorney handling it and not this felony office, correct?

Do we still have jurisdiction?

Assuming a misdemeanor was transferred to district court under 4.17, would it be a 6 or 12 person jury?

Seems unfair and pointless that a defendant could make it tougher for the State because the county doesn't have a county court at law.

Assuming that you have no limitation problems you can just dismiss the entire felony indictment and then give the case to the county attorney who can file it in county court by complaint and information.

You hit the nail on the head--limitations problem.

Check out Tex. Code Crim. Proc. Ann. art. 12.05(b) (Vernon 2005) (pendency of indictment shall not be computed in period of limitation); cf. State v. Collier, 285 S.W.3d 133 (Tex. App.---Houston [1st Dist.] 2009, no pet.) (3 yr SoL. for state jail tampering with govt. doc. tolled by original indictment that plead elements constituting misdemeanor offense where D originally indicted during 3 yr SoL period and reindictment alleged same act of making false entry); and see Alston v. State, 738 S.W.2d 762 (Tex. App.---Beaumont 1987, no pet.) (reversing conviction on SoL grounds for failure of indictment to including paragraph about tolling provision to show offense was not outside SoL); Ex parte Ahmad, No. 02-05-00338-CR, 2005 WL 80013 (Tex. App.---Fort Worth Apr. 25, 2007, pet. ref'd) (misdemeanor indictment should contain tolling paragraph alleging limitations were tolled by filing of felony complaint arising from same conduct).

thanks!

In a transferred case, the size of the jury in the district court is 6. Art. 33.01(b).