THEA NEY
AUSTIN, TEXAS
Bovember19, 1949
Eon. E. E. Coona opinion Ro. v-947.
County Attormey
Sherman County Re: Constitutionalityof R.B.
Stratford, Texas 558, Acts 51st Leg., ~rel-
ative to rees of County
Judges, Judges of County
Courts at Law, and Jus-
Dear Sir: tices of the Peace.
You have requested an opinion on the constitu-
tionality of House Bill 558, Aots 51st Leg., R.S. 1949,
ch. 496, p. 917,,amendlngArticle 1052, Vernon's Code of
CriPllnalProcedure.
c H.B. 558 provides:
'An Act to amend Article 1052, Code of Grim-
&al Procedure of Texas, 1925, as amended, SO
as to provide a fee of Five Dollars ($5) to
be paid the County Judge or Judge of the Court
at Law in each cWnina1 a&ion tried and fi-
nally disposed of before him; providing this
Act shall be severable;repealing all laws In
confllht; and declaring an emergency
"BE IT ERACTRD BY THE:LEGISLATUREOF THE STATE
OF TEXAS:
'Section 1. Article 1052 of the Code of
Criminal Procedure of Texas, 1925, as amended,
is hereby amended so as to hereafter read as
follows:
"'Article1052.
"'Five Dollars ($5) shall be paid to the
County Judge or Judge of the Court at Law and
Two Dollars end Fifty Cents ($2.50) shall be
paid to the Justice of the Peace for each
crlmlnal action tried and finally disposed of
before him. Provided,however, that in all
Hoq, E. E. Coons, page 2 (P-947)
counties having a population of twenty thou-
sand (20,000) or leas the Justice of the Peace
shall receive a trial fee of Three Dollars
($3). Such Judge or Justices shall present to
the CoasmlasionersCourt of his county at a
regular term thereof a written account speci-
fying each criminal action In which he claims
such fee certified by such Judge or Justice to
be correct and filed with the County Clerk.
The CommissionersCourt shall approve such ac-
count for such amounts as they find to be cor-
reet and order a draft to be issued on the
County Treasurer in favor of such Judge or
Justice for the amount due said Judge or Jus-
tice from the county. Provided.however, that
the fees provided herein shall be paid by the :
defendant in oases in which a convictionis
held. The CommissionersCourt shall not how-
Z%Y pay any account or trial fees in any case
trL,edand in which an acquittal is had unless
the State of Texas was represented in'the tri-
al of said cause by the County Attorney or his
assistant, criminal District Attorney or his
assistant and the certificateof said Attorney
is attached to said account certifyingto the
fact that said cause waa tried, and the State
of Texas was represented,and that in their
judgment there was sufficientevidenceA;;;z;t
cause to demand a trial of the same.
provided herein which are paid to officerswho
are compensatedon a salary basis shall~be
paid into the Officers Salary Fund.'"
Article lo52 was amended by H.B. 558 by raia-
ing the fee of the County Judge OP the Judge of the
County Court at Law from $3.00 to $5.00 for each criti-
nal action tried and finally disposed of before him. In
addition thereto H.B. 558 contained in the body of the
bill a proviso requiring the fees to be paid by the de-
fendant In case of conviction.
Section 35 of Article III of the Constitution
of Texas provides:
"Blobill . . . shall contain more than
one subject, whiah shall be expressed in its
title. But If any subject shall be.embraced
in an a&. which shall not be expressed in
the title, such act shall be void only as to
Hon. E. E. Coons, page 3 (V-947)
so much thereof, as shall not be so expresa-
c (Rsphaa5.8
added.)
The question for OUP deter&nation is whether
the above quoted provision is included in the caption of
H.B. 558 as required by the above quoted constitutional
provision.
Artiole lo52 prior to its amendment by the 51af
Legislature contaLnedno provision requiring the fees to
be paid by the defendant in oase of conviction. That re-
qulrementwas added in the body of H.B. 558. We do not
find any provision in the caption which shows that the
additional change was to be made in Article 1052."
We therefore a ree wrlthyour conclusionthat
the provision of H.B. 558 of the 51at Legislature,re-
quirlng the fees provided for in Article lo52 to be paid
by the defendant in case of conviction,is in violat$on
of Section 35 of Article III of the Conatltutlon of Tex-
as. Gulf Insurance Co. v. James, 143 Tex. 424, 185 S.W.
26 q@j (1945); Texas-LouisianaPower Co. v. City of Far-
mersville, 67 S-33) . W ard Cattle
and Pasture Co. v. CarpZnte?am~Oqpkx. 103: 200 S.W. 521
gltr);A.G. Opinion Ho. V-&I.
SW
The provision of House Bill 558 of the
51at.Legislature,requiring the fees provided
for In Article lo52 to be paid by the defend-
ant in uase of conviction is in violation of
Section 35 of Article III of the Constitution
of Texas. Gulf Insurance Co. v. James, 143
Tex. 424, 185 S.W.2d 966o;-Texas-Louisi-
ana Power Co. v. City of Farmeravm7 S.W.
26 235 (C A 1933) Ward Cattle and Pas-
ture Co. ?m6ar%k.er, l& Tex. 103 200 S W
521 (1918); A .G . 0pinion 100. v-919.' l *
Yours very truly,
APPROVED ATTORNEY GRRRRAL OF TEXAS
ATTORRRY GRRERAL
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