Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GERALD C. MANN ATTORNEY GENERAL
April 20, 1939
Mr. S. T. Denny County Auditor Houston County Dreckett, Texas
Dear Sir:
Opinion No. 0-634 We: Can trial fees provided by arts. 1074, O. C. P., for justices of the peace be paid into the specially created funds mentioned, and how should the justices of the peace be paid under the facts set forth?
Your request for an opinion on the above state question has been received by this office.
Your letter reads in part as follows:
"In Houston County, the County Officers are on salaries, but the President Officers are on fees. The County contains eight (8) Justice Presidents and the Commissioners Court has passed and entered an order creating a special fund for each Justice of the Peace, out of which the Justices are paid their fees for misdemeanor criminal cases tried and finally disposed of before them. A separate fund has been created for each Justice of the Peace, and only that Justice is paid out of that fund. Into that fund are paid the trial fees due and payable in that particular Justice Court, under Article 1074, Vernon's Code Or. Proc. (1938 Pocket Part). No other monies are placed in the special fund, or in any of such special funds.
*2 Kr. G. L. Denny, April 20, 1939, Page 2 "The Justices of the Peace is paid the fees he is entitled to receive under Art. 1052, Code Cr. Proo., as amended, by warrants authorized by the Commisgioners Court upon claims filed by the Justices, such warrants being drawn against the particular fund created in the above manner set forth. The Justice of the Peace receives only these warrants for such fees, and the Commissioners Court does not issue him any other warrants or drafts therefor. "Please advise me (1) whether the trial fees provided by Article 1074 Code Cr. Proo. can lawfully be paid into the specially created funds mentioned above; if not (2) into what fund maintained by the County Treasurer should such trial fees be paid. Also, in what manner and out of what funds are the Justices of the Peace entitled to receive payment for the fees due them under Article 1052 Code Cr. Proo., as amended. Art. 1052 Code Cr. Proo. provides that payments shall be made by draft, implying cash payments, and I shall appreciate being advised on that point."
Article 1074, C. C. P., reads as follows: "In each case of conviction in a county Court, or a County Court at Lew, whether by a jury or by a Court, there shall be taxed against the defendant or against all defendants, when several are held jointly, a trial fee of five Dollars, the same to be collected and paid over in the same manner as in the case of a jury fee, and in the Justice Court the trial fee shall be the sum of four Dollars."
Article 1052, C. C. P., reads as follows: "Three Dollars shall be paid by the county
*3 Kr. S. I. Jenny, Jpril 20, 1939, Page 3 to the County Judge, or Judge of the Court at Law, and Two Dollars and fifty cents shall be paid by the county to the Justice of the Peace, for each oriminal action tried and finally disposed of before him. Provided, however, that in all counties having a population of 20,000 or less, the Justice of the Peace shall receive a trial fee of Three Dollars. Such Judge or Justice shall present to the Commissioners' Court of his ounty at a regular term thereof, a written account specifying each oriminal action in which he claims such fee, certified by such Judge or Justice to be correct, and filed with the County Clerk. The Commisioners' Court shall approve such account for such amount as they find to be correct, and order a draft to be issued upon the County Treasurer in favor of such Judge or Justice for the amount so approved. Provided the Commisioners' Court shall not pay any account or trial fees in any case tried and in which an acquittal is had unless the State of Texas was represented in the trial of said cause by the County Attorney, or his assistant, Oriminal District Attorney or his assistant, and the certificate of said Attorney is attached to said account certifying to the fact that said cause was tried, and the State of Texas was represented, and that in his judgment there was sufficient evidence in said cause to demand a trial of same."
Article 1052, C. C. P., supra, specifically provides that the county judge, or judge of the court at law, shall be paid three dollars by the county, for each oriminal action tried and finally disposed of before him, and such statute further provides that justices of the peace shall receive two dollars and fifty cents in all counties having a population in excess of 20,000 and three dollars in all counties having a population of 20,000 or less for each oriminal action tried and finally disposed of before him, such fees to be paid by the ounty
*4 :r. E. T. Jenny, :pril 20, 1939, Page 4 when such clelme are filed in compliance with said article. This stetute imposes an obligation upon the county to pay the fees provided therein for each criminal action tried and finally disposed of before such judge or justice, and the county owes this fee to the judge or justice regardless whether the trial fee as provided by article 1074, C. C. P., supra, is collected or not.
We think that the contention may properly be raised that the warrants issued to the justlees of the peace under the plan set forth in your letter, would soon become worthless or nearly so, and that the justlees might be induced to find defendants guilty in order to build up these funds, as the Commissioners' Court does not issue any other warrants or drafts to pay the fees provided by Article 1052, supra. Therefore, the reselt of the case before the justice of the peace would necessarily effect him as to his personal or pecuniary loss or gain and would be disqualified under article 5, Section 11 of the State Constitution. Also see the case of Ex Parte Kelly, 10 SN and 728.
After a careful search of the statutes and the appellate court decisions, we fail to find any statutory provision or other authority authorizing the Commissioners' Court to create the special fund as mentioned in your inquiry, therefore, the Comissioners' Court would not have the authority to place the trial fees as provided in Article 1074, supra, into these funds.
Article 1074, supra, specifically provides that such trial fees shall be collected and paid over in the same manner as in the case of a jury fee.
You are respectfully advised that it is the opinion of this Department that the trial fees as provided for by Article 1074, supra, must be collected and paid over in the same manner as in the case of a jury fee and that such fees cannot be paid into the specially created fund above mentioned.
You are further advised that the county must
*5 Mr. G. T. Denny, April 20, 1939, Page 5
pay the judge or the justice of the peace the fees for each criminal action tried and finally disposed of before him as provided by Article 1052, C. C. F., by draft to be issued upon the county treasury for the amount approved by the Commissioners' Court.
Trusting that the foregoing answers your inquiry, we remain
Very truly yours
ATTORNEY GENERAL OF TRIAS
By Chlete Wilec
Ardell Williams
Assistant
AN:AN
APPROVED:
Soyede, mean
ATTORNEY GENERAL OF TRIAS