Case Information

OFFICE OF THE AmORNEY GENERAL OF TEXAS

AUSTIN

Honorable Ben J. Dean

District Attorney

Breckenriaga, Texas Dear Sir:

Your request f0

carefully conkidered by t

your request as fol.l.orvs:

Where a defend

ing wlills intoxlcete

9, Vernon*s Annotated Texas Code of 0ads as follows: Cri

aefendant is inaictea.for a felony f,ia :udsbnent is by fine nvicticn or ccafine:xe&, in 12x county jail, or b:r Lath such fioe Ed confineaant in the county jail or convicted of 2 nisdemanor, no coats shall be pid by the State to any officer. All costs in such C~~LJS si>:\ll be taxed, asseesed 2nd oolleaf,e~ 23 in misdemaafior oa8es.W

f!GnOrable Ben J. Dean, page 2

Article 1071, Verno:z8s Annotated Texas Code of cxj,siBal Procedure, reads as follci4s:

*Justices. of thepeaoe who sit as an examining court in zisdoaeanor cases ahall be eutitkd t0 the Salxd 'fees allowed by lmv to such-justices for stiilar services in the trial of suoh cases, not tc exoeed three dollars in any one case, to be paid by the defendant in case of Pin&l convic- tion** ,1052, Veruon*'s Annotated Texas Cods of ~~ ~--Ki%icle Criminal procedure,, reads as fol.lom:

"Three Dbllara shall be pala by the county to the County Judge, or Judge or the Court ut Law, and Wo Dollars and fifty cents shall be paid by the county to the Justice of the Peace, for each crizihaal action tried and Pirally ais::osea of be- Pore him. Provided, hoY:ever, that in all counties having a population of 20,000 or less,, the Justice of the r"e&ca shall re- ceive a trial Pee of Three Dclfars. Srtch Judge or Justice shall present to the

Comissioners' Court of his cod&y at a regular tern thereof, a writttii account specifying each criirinal action in which he claim such Pee, CGztifiGa 5y such Judge or Justice to be correct, aS Piled with the County Clerk. The Comi33ioaerst

Court shall approve such account for such amount as they find to be correcti; and

order a draft to be issued ur,on the County Treasuror in Psvor of such Jud!ze or JusSice for the mount so approved. Provided the Comissioners' Court shall net pay any

account or trial Pees in auy case tried and in which an acquittal is had unless the

State of Texas was rsg::esonted in the trial of said came by the County Attcrno:~, or his assistsrit, Crisinal Flistricb Attorney or his assiatnnt, ilnd the cartificats of said Attcrnsy is n*,tnched to mid rlccount *3 gcaorable Ben J. Dean, Page i

certifyins to the fact that said cause was tried$ and tha State of Texas vns repre- sented, and that in his judgment there was sufficient evidence-in said cause to denmnd a trial Of sane."

The population of Stephens Countyr Texas, is loss than &O,OoO inhabitants according to the 1940 Federal Cen- 8lS.

Opinion No. C-2877 cf this department passes on a situation where a Justice o? the Penae (on the fee sys- tem) holds an examining trial where a defendant is char,ned with a felony, to wit, drlvirg a zotor re3icle while in- toxicated and where the constable (on the fee system) cakes the arrest for em-ining trial, etc., o.nd w3are the Grand Jury indicts the defendant and %here upon trial the defendant is @*zan a fine and jail sentence and where the defendant: does not pay his fine and costs but lays the 8638 out in jail or works it out on the county roads or ether county projects. This opinion holds that under said facts the county is liable to the Justice of the Peace and constable for one-half of their legal examining trial fees in said cause. ?ie enclose hercAt!i a cow of opin- icn No. O-2877 for your information.

In ansvier to your first question you are res- pectfully advised that it is the opinicn of this depart+ kent that the Justice of the Peace of Stephens County would be entitled to collect a fee of $3.CC from the defendant under the facts stated:

fn answer to your seccnd question it is our opinion that under the facts stated if the defendant could not pay the fine and costs and laid 9828 out indai.1 or ororked it out on the county roads or on a county project the county ~:wrJa he liable to the Justice for one-half of his examining trial fee under Article 1055, 7. A. T. c. c. P. *4 ,,,\..

. ,. 226 P-. .,

cosorable Ben J. Dean, Page~4

It IS to be understood tixt we do not pass upon the oonstitutionality .of Article 1071 of the Code of criatnal Procedure, s-spra. VerJr &Cly yours

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