Untitled Texas Attorney General Opinion

November 10, 1965 Honorable Wayne B. Davis Opinion NQ. C-542 County Attorney Goliad County Re: If a fine of $1.00 and costs Gollad, Texas is assessed In the Justice of the Peace Court, how much Dear Mr. Davis: money is to be paid? This is In response to your recent request for an opinion of this office concerning the following question: "If a fine of $1.00 and costs Is ~assessed in the Justice of the Peace Court, how much money Is to be paid?" For the purpose of this opinion It is assumed that your question Is directed toward cases involving a violation of any Penal Statute or of the Uniform Act Regulating Traffic on Highways. This Is assumed because the new Code of Criminal Procedure for the State of Texas will effect a change in court costs In Justice of the Peace Courts in these types of cases. Article 1068, Vernon's Code of Criminal Procedure pro- vides as follows: “If the defendant pleads guilty to a charge before a Justice, the fee allow- ed the attorney representingthe State shall be ten dollars ($10.00 . The tate in attorney who represents the E! a criminal action In a Justice's Court shall receive, for each convictionon a plea of not guilty, where no ap eal is taken, fifteen dollars ($15.00P ." On January 1, 1966, the effective date of the new Code of Criminal Procedure, Article 1068 will have been repealed by Article 53.03,.Code of Criminal Procedure of Texas, 1966. Said Article provides as follows: "The attorney representing the State be- fore a Justice Court shall receive no fee for his appearance before said Court -2591- Honorable Wayne B. Davis - Page 2 Opinion No. (c-542) in a case Involving the violation of any Penal Statute or of the Uniform Act Regulating Traffic on Highways." Article 1074, Vernon's Code of Criminal Procedure,pro- vides as follows: "In each case of conviction In a County Court, or a County Court at law, whether by a Jury or by a Court, there shall be taxed against the defendant or against all defendants,when several are held a trial fee of five dollars g%y the same to be collected and paid o&r in the same manner as In the case of a jury fee, and $n the Justice Courts the trial fee shall be the sum of five dollars and fifty cents ($5.50).” As of January 1, 1966, the above quoted Article 1074 will have been repealed by Article 53.06, Code of Criminal Procedure of Texas, 1.966. Said Article 53.06 will provide as follows: "In each case of conviction in a County Court or a County Court at law, whether by a Jury or by a clerk, there shall be taxed against the defendant or against all defendants,when several are held jointly, a trial fee of $5.00, the same to be collected and paid over In the same manner as in the case of a jury fee; and there shall be no trial fee allowed in a Justice Court In a case involving the violation of any Penal Statute or of the Uniform Act Regulating Traffic on Highways." In view of the above quoted .Articles,It is seen that as of January 1, 1966, there will no longer be any state's attorney fee or trial fee In the Justice Courts, involving the violat$on of any Penal Statute or of the Uniform Act Regulating Traffic on Highways. Since the total of these two fees on a plea of guilty formerlywas $15.50, and on a plea of not guilty where a con- viction was obtained, $SO.5O, it is the opinion of this office that the above mentioned sums, as of January 1, 1966, may not be assessed as costs In Justice Courtsin cases involvingthe -2592- Honorable Wayne B. Davis - Page 3 Opinion No. (C-542) violation of any Penal Statute or of the Uniform Act Regulat- ing Traffic on Highways. This is not to say, however, that in no Instance may any costs at all be assessed in Justice of the Peace Courts in criminal cases. Article 53.01 of the 1966 Code specifi- cally sets out certain fees for.serviceswhich, If performed by the sheriff or any other peace officer In a misdemeanor case, are to be taxed against the defendant on conviction. Of course these fees will not be present in every case in Justice of~the Peace Courts, but If they are performed, they shall be taxed against the defendant as costs in the case. For example, Article 53.01 (1) provides a fee of three dollars ($2.00) payable to the sheriff for executing a warrant of arrest or capias, or making an arrest without warrant. In the eventaany one or more of the fees provided for in Article 53.01 are applicable, they shall be taxed as court costs against the defendant In misdemeanor cases in Justice Courts. It Is also pointed out that Article 54.02 (b) of the 1966 Code specificallysets out that Article 1075 of the Code of Criminal Procedure, 1925, Is not repealed. This Article provides for a jury fee to be assessed against the defendant in a case tried by a jury in a Justice Court in the event of a conviction. It is, therefore, Impossible to specificallyanswer your question. If, after January 1, 1966, a fine of $1.00 and-costs .isassessed in a Justice of the Peace Court, and there have been no costs Incurred then only $1.00 will be assessed. However, If some of these costs have been ln- curred, they shall be assessed against the defendant. How- ever,.afterthe above mentioned date, Articles 53.03 and 53.06 prevent the assessment of trial fees or State's attorneys fees in cases Involving the violation of sny Penal Statute or of the Uniform Act Regulating Traffic on Highways brought in Justice of the Peace Courts. Subsequent to~your request, another County Attorney re- quested our opinion as to the constitutionalityof Article 53.03. In order to avoid writing another opinion, we will answer his question in this opinion, and send him a copy. As we are unable to find a constitutionalprovision that makes it mandatory that the Legislature provide a fee to be allowed the attorney representingthe State in criminal cases -zss3- Hohorable Wayne B. Davis - Page 4 Opinion N6. (c-542) In Justice of the Peace Courts, it Is oursopinion that Article 53.03 is constltutlonal SUNMARY Articles and 5 .06, Code of Criminal Pro- 53.03 cedure.of Texas, 1962, abolish trlal,feesand State's attorneys fees in Justice of the Peace Courts. However, tithercosts shall be assessed in these types of.cases if they have been in- curred. Article 53.03 Is constitutional. Yours very truly, WAGGONER CARR Attorney General of Texas SLK/lh APPROVED: OPINION COMMITTBE W. V. Geppert, Chairman Robert'Owen Tom Routt Robert Flowers Harold Kennedy APPROVED FORTHE ATTORNEY GENERAL . BY: T. B. Wright . -25?4-