. .
R-566
THEATTOWNEY GENERAL
OP TEXAS
‘%ULilTIN 11. m
PRICE DANIEL
ATTORNEY GENERAL
June 23, 1947
Hon. Elmer H. Parish Opinion No. V-260
District Attorney
Wichita County Re: The authority of a
Wichita Falls, Texas Justice of the Peace
to charge the fee
Dear Sir: allowed by Article
1052, V.C.C.P. ,when
he sits as a “Court
of Inquiry” under
Arttcle 006,V.C.C.P.
In your letter dated June 6, 1947, receipt
of which was acknowledged on June 9, 1947, you requested
an opinion -of this Department on the following:
Way a Justice of the Peace in a
county of more than 20,000 population,
charge the $2.50 fee as allowed by Ar-
ticle 1052, C.C.P., when he sits as a
magistrate under Article 886, C.C.P., as
a court of Inquiry, wherein he adduces
sufficient evidence to warrant prosecu-
tion, and complaint is made based upon
that evidenoe and docketed as a new
case on his docket and then disposed of
by the Justice of the Peace?
“In the case at hand, no individ-
ual was under arrest; the Justice of the
Peace was conducting a hearing to ascer-
tain if any law had been violated, and,
if so, by whom.”
Article 1052, V.C.C.P., provides in part:
” . . .Two dollars and fifty cents
shall be paid by the county to the Jus-
tice of the Peace, for each criminal ao-
tion tried and finally disposed of be-
fore him.”
Article 886, V.C.C.P., provides:
When a Justice of the Peace has
good cause to believe that an offense
Hon. Elmer H. Parish - Page 2
has been, or is about to be, coa-
nitted against the laws of this
state! he may summon and examine
any witness in relation thereto.
If it appears from the statement
of any witness that an ~offense
has been oomaitted, the Justioe
shall reduce said statements to
writing and cause the same to be
sworn to by each witness making
the same; and issue a warrant for
the arrest of the offender, the
same as If complaint had been
made and filed.”
Article 24 of Vernon’s Penal Code provides:
‘“A criminal action means the
whole or any part of the procedure
which the law provides for bringing
offenders to justice; and the terms
‘prosecution’ and t accusation’ are
used in the same sense.”
In Brown v, State, 118 S. I:‘. 139, the Court,
in discussion a “Court of Inquiry” held by a Justice of
the Peace, stated:
“He was summoning before him-
self as Justice of the Peace, wit-
nesses solely for the purpose, and
only with the view of asoertaining
If any crimes or violations had been
committed. . . He had no case before
him; he was investigating as Justice
of the Peace, with a view and for
the purpose of finding, or procuring,
or originating a case or cases.W
It will be noted that Article 1052, V.C.C.P.,
provides that the fee shall be paid to the Justice of the
Peace “for each criminal a&ion triad and finally dis-
posed of before him.” A *Court of Inquiry” as provided
for in Article 886, V.C.C.P., is not a proceeding in which
a criminal action is tried and finally disposed of but an
inquiry to determine whether or not a criminal action
should be instituted.
. .
Hon. Elmer H. Parish - Page 3
Article 886, V.C.C.P., provides that if it ap-
pears to the Justice of the Peace that an offense has been
committed he shall “issue a warrant, for the arrest of the
offender, the same as if a complaint had been made and
filed.” It is well settled that the complaint is the ini-
tial step in a critinal prosecution. 12 Tex. Juris. 382.
It therefore appears that Article 886, V.C.C.P., is pro-
viding another method of instituting a criminal action.
If it appears at the court of inquiry that no offense has
been committed and no warrant is issued, then no criminal
action is ever commenced, But if the evidence at the in-
quiry is sufficient to justify the issuance of a warrant
and one is in fact issued, a criminal action is at that
time commenced and in no wise tried and finally disposed
Of. If no warrant is issued but a complaint is made based
upon the evidence adduced at the court of inquiry and dock-
eted on the docket of the Justice of the Peace, the crimi-
nal action is commenced upon the filing of the cosiplaint
and a criminal action is not tried and finally disposed
of until all the issues of law and fact have been deter-
mined, and the final judgment entered.
Fee statutes are strictly construed and UA-
less there is an express authority to pay a fee none may
be paid. There is no provision made for paying a fee to
a Justice of the Peace for holding a court of inquir’y as
provided for in Article 886, V.C.C.P. It is a familiar
rule with respect to compensation of public officers that
they shall receive such ‘salary, fees, or compensation OA-
as may be prescribed by law. If an additional duty is
tii posed upon an .officer for which no fee or compensation
is fixed by law, the duty must be performed as an addition-
al burden imposed by law without extra compensation thsre-
for. This rule has been uniformly followed by the courts
and by the opinions of this department. (Atty. Gen. Opin-
ion No. V-144) It therefore follows that your question
should be answered in the negative.
SUMMARY
Public officers shall only receive such
salary, fees, or compensation as my be pre-
scribed by law. A Justice of the Peace may
AOt charge the fee provided for in Article
1052, V.C.C.P., where he sits as a Court of
Hon. Elmer H. Parish - Page 4
Inquiry under the provisions of Artiele 886,
V.C.C.P., inasmuch as a "Court of Inquiry"
is not a criminal action.
Very truly yours
A!l'TORNEYGENERAL
OF TEXAS
BY
?!kz$%*
Assistant
EW:et:djm:'#El APFROVED: