Case Information

*1 TEEA~~~ORNEY GENERAL OFTEXAS

HMorable T; 'Gilbert Adams

C%init~ A$tdrneg

J&isp&'County

Jasper, Texas -.,~ Dear Sir: Oplniofi Non; o-52=- “‘~

Re: Authdrity.df a.Ju‘etibe bf3hV Pe&c'Ei to colIect“a‘fee-.id~'~he issuance of a search warrant. .., *. .~ __._ ~.

Your request for ‘dpinion has beeti rec&iVed~ati~~bai+d -filly considered by this department. We quote from ycur request as follows: _^

"I would,thank you Fo furnish Bie with'an opinion as to what method and manner a Justice of the Ptiace" should.'fbllow intiollectlng fees f‘dr IsSuing a Search Warrant t5 Peace"Offlcers in lii- vestiga,tion of Liquor violations and other violaL tions which do not borne und.@r the jurisdiction bf the Justice Court, and in cases-~that do not come under the- jurisdiction upon trlCil,"of the Justice of the Peace; when the Bearch warrant Is used by the officer and no violation sufflc'ient to pro- secute, is found on the premises searched. .

"Undbr Article 1066, Code bf Criminal Pro- cedure, Texas Statutes, reads as follows: it

"'Justices of the'peac.e shall receive the following fees in criminal actions tried before them. to be collected of the defendant in case of his condytion: warrant, Seventy-five cents. . For each

. . . ..f . a .o "I,'po not find any provision in the Statute thb Fe&e is..pr&ected in whereby a Justice of __ .- hlKfee .when he issues a S‘earch Warrant for the

Peace Officer an&the violation, if one is found to'exlst, comes under the jurisdiction of the District Coiirt or the County Court, OP where it is found that there is not bufflclent vlolatioii to justify prosecution. I am referring especially *2 ., ., ,.,

Honorable T. Gilbert Adams, page 2

: ,, to violations of the Liquor Law and warrants is- sued by the Justice of the Peace for State Liquor Inspectors in their efforts to curb the violation of the Liquor law8 in a dry area.

,"I Would assume that if there Wa8'.nOt suffi- tilefit @vld‘EhCe fbuduna to ijros&de.a violation upon which a Search wartiknt h&s iSSUd, there'would be no f&e payable to'the Justide of the"Peace, but in th& event ther'&.'is'~sufficibnt evidence'.found by .' reason"of the warrant, there Is some way to protec,t the Jtistice for his services in the issuing of the warrant."

-,' Article 1066, Revised Code of CVimlnal"-Proc,edure of Texas ,1925, referred,to~ifi your lette?,'was repelled in 1929"by H.B. 64 of the 41st Legislature Bf Texas, Firat Called Session.

_. There is no Texas statute allowIng ju8tYkes'of the peace fees for issuing search warrants of any character. ."

We quote from 34 Texas Jurisprudence, page 511, as fOllOW8:

"As hereinbefore stated, the compensation of $ublic officers is fix& by the Constitution Sir statutes. An bfficer may not claim or reach aiiy %onSy without a law‘.authorizing him to do so, and clearly,,fixing the gmount to which he Is entitled.

. . . .

- In"vi,ew of the above it is our opinion that"justices of-'the peace are not i3ntftled to any fees for Issuing any character of search warrants.

We enclose herewith for your information a copy of opinion'No. O-4091 of this department which holds Article 1071, Vernon's Annotated Texas Code of Criminal Procedure (an article allowing justices of"the petice examining tr'ial fees in misde- meanor cases to be tcixed against the defendant on conviction) to be unconstitutional.

Honorable T. Gilbert Adams, page 3

Very truly yours ATTORNEY GENERAL OF TEXAS By s/Wm. J. F&nning Wm. J,“Fannlng Assistant WJF:mp:wc

Encl.

APPRm MAY 18,

s/Gerald C. Mann

ATTORNEY GENERAL OF TEXAS

Approved Opinion Committee By s/BIsB Chai'rman