Case Information

*1 R-566 THEATTOWNEY GENERAL OP TEXAS ‘%ULilTIN 11. m

PRICE DANIEL June 23, 1947 ATTORNEY GENERAL Opinion No. V-260 Hon. Elmer H. Parish District Attorney Wichita County

Re: The authority of a Justice of the Peace Wichita Falls, Texas

to charge the fee allowed by Article Dear Sir: 1052, V.C.C.P. ,when

he sits as a “Court of Inquiry” under Arttcle 006,V.C.C.P.

In your letter dated June 6, 1947, receipt of which was acknowledged on June 9, 1947, you requested an opinion -of this Department on the following:

Way a Justice of the Peace in a county of more than 20,000 population, charge the $2.50 fee as allowed by Ar- ticle 1052, C.C.P., when he sits as a magistrate under Article 886, C.C.P., as a court of Inquiry, wherein he adduces sufficient evidence to warrant prosecu- tion, and complaint is made based upon that evidenoe and docketed as a new

case on his docket and then disposed of by the Justice of the Peace?

“In the case at hand, no individ- ual was under arrest; the Justice of the Peace was conducting a hearing to ascer- tain if any law had been violated, and, if so, by whom.” in part:

” . . .Two dollars and fifty cents shall be paid by the county to the Jus- tice of the Peace, for each criminal ao- tion tried and finally disposed of be- fore him.”

Article 886, V.C.C.P., provides: When a Justice of the Peace has good cause to believe that an offense

has been, or is about to be, coa-

nitted against the laws of this

state! he may summon and examine

any witness in relation thereto.

If it appears from the statement

of any witness that an ~offense

has been oomaitted, the Justioe

shall reduce said statements to

writing and cause the same to be

sworn to by each witness making

the same; and issue a warrant for

the arrest of the offender, the

same as If complaint had been

made and filed.”

Article 24 of Vernon’s Penal Code provides: ‘“A criminal action means the whole or any part of the procedure

which the law provides for bringing

offenders to justice; and the terms

‘prosecution’ and t accusation’ are

used in the same sense.”

In Brown v, State, 118 S. I:‘. 139, the Court, in discussion a “Court of Inquiry” held by a Justice of the Peace, stated:

“He was summoning before him- self as Justice of the Peace, wit-

nesses solely for the purpose, and

only with the view of asoertaining

If any crimes or violations had been . . He had no case before

committed.

him; he was investigating as Justice

of the Peace, with a view and for

the purpose of finding, or procuring,

or originating a case or cases.W

It will be noted that Article 1052, V.C.C.P., provides that the fee shall be paid to the Justice of the Peace “for each criminal a&ion triad and finally dis- posed of before him.” A *Court of Inquiry” as provided is not a proceeding in which in Article 886, V.C.C.P., a criminal action is tried and finally disposed of but an inquiry to determine whether or not a criminal action should be instituted. *3 that if it ap-

pears to the Justice of the Peace that an offense has been committed he shall “issue a warrant, for the arrest of the offender, the same as if a complaint had been made and filed.” It is well settled that the complaint is the ini- tial step in a critinal prosecution. 12 Tex. Juris. 382. It therefore appears that Article 886, V.C.C.P., is pro- viding another method of instituting If a criminal action.

it appears at the court of inquiry that no offense has been committed and no warrant is issued, then no criminal is ever commenced, But if the evidence at the in- action quiry is sufficient to justify the issuance of a warrant and one is in fact issued, a criminal action is at that time commenced and in no wise tried and finally disposed Of. If no warrant is issued but a complaint is made based upon the evidence adduced at the court of inquiry and dock- eted on the docket of the Justice of the Peace, the crimi- nal action is commenced upon the filing of the cosiplaint and a criminal action is not tried and finally disposed of until all the issues of law and fact have been deter- mined, and the final judgment entered.

Fee statutes are strictly construed and UA- less there is an express authority to pay a fee none may be paid. There is no provision made for paying a fee to a Justice of the Peace for holding a court of inquir’y as provided in Article 886, V.C.C.P. It is a familiar rule with respect to compensation of public officers that they shall receive such ‘salary, fees, or compensation OA- If an additional duty is

as may be prescribed by law. upon an .officer for which no fee or compensation tii posed is fixed by law, the duty must be performed as an addition- al burden imposed by law without extra compensation thsre- for. This rule has been uniformly followed by the courts and by the opinions of this department. (Atty. Gen. Opin- It therefore follows that your question ion No. V-144) should be answered in the negative.

SUMMARY Public officers shall only receive such salary, fees, or compensation as my be pre- scribed by law. A Justice of the Peace may AOt charge the fee provided for in Article 1052, V.C.C.P., where he sits as a Court of *4 Hon. Elmer H. Parish - Page 4

Inquiry under the provisions of Artiele 886, V.C.C.P., inasmuch as a "Court of Inquiry" is not a criminal action.

Very truly yours A!l'TORNEYGENERAL OF TEXAS BY ?!kz$%*

Assistant EW:et:djm:'#El APFROVED: