Untitled Texas Attorney General Opinion

NEY GENERAL EXAS ,GROVERSELLERS AUEVIXN 11.1'EXAS August 7, 1945 Hon. Sam B. .Ha)l County Attorney Hamlson County Marshall, Texas Attention: Mr+ Robert M. Sllee Opinion No. O-6661 Dear Sir: Re: In a peace bond proceed- ing, where the accused haa been placed under bond,,1s the Justice-of ,- Peace, as magistrate,en- titled to fees as in crim- inal bases? And/related questiona. Ue acknowledge receipt of your letter in which you request the oplnlbn of ‘thisdepatment on the following ques- tlonst “(1) In a peace bond proceeding, before a magistrate, under Arts. 79 and 80, c. c. P., where the accusea has been placed under a bond after a hearing, makes the bond required by the court, and pays the costs of such proceeding to the County, is the Justice ol the Peace.entltledto fees as any other criminal case, or la he &titled to fees as in civil cases.7 “(2) In a similar case a8 Number 1 above, except where the accused has failed to make bond and pay costs, and Is placed In jail, Is the Justice of the Peaae entitled to any fees? “(3) In the fact situation of Number 2 above, are the other officers,entitledto half cost If he serves the time In jail? Hon. Sam B. Hall, page 2 (O-6661) "(4) In the event a person legally placed under a peace bond after a hearing before a magistrate, and he falls to make such bond, does the Justice of the Peace have authority to revoke said order and release the defendant; and if not, is there any remedy where- by he may obtain his release without making the bond?" By virtue of Article 33, V. A. C. C. P., a Justice of the Peace is ex-officioa magistrate. When the Justice of the Peace sits as a magistrate,his powers and jurisdictionare tHaae SiM fly of a magistrate and exclusive of hi ffi Justice of the Peace. Brown v. State (Ct. Crlm.'Agp. &1$;55 Crlm. Rep. 572, 118 S. W. 139,143. A peace bond proceeding ls before a magistrate and the proceeding 1s "generallyregarded in the nature of criminal proceedings".Ex parte Garner (Ct. Crlm. App. 1922),246 S. W. 371, 372, citing cases in other states holding such proceedings criminal. In sustenance of this opinion we find provision for such proceedings In our Code of Criminal Procedure and reference therein to the "charge" as against the 'accused'. We must look therefore to the Code of Criminal Proced- ure for provision as to the amount of fees in such case for the magistrate. Articles 1052 and 1074, V. A. C. S., provide, In part, as follows: “Art. I.052. Three Dollars shall be patd by the county to the County Judge, or Judge of the Court at Law, and Two Dollars and fifty cents shall be paid by the county to the Justice of the Peace, for each crim- inal action tried and finally disposed of before him. Provided, however, that in all counties having a popu- lation of 20,000 or less, the Justice of the Peace shall receive a trial fee of Three Dollars. Such Judge or Justice shall present to the Commissioners'Court of his county at a regular term therof, a xritten ac- count specifyingeach criminal action in which he claims such fee, certified by such Judge or Justice tt be correct, and filed with the County Clerk. . . . - ‘ Hon. Sam B. 'Hall;Page ? (O-6661) "Art. 107$., In each case of conviction ln,a Co t Cou t 0 a,County Court at Law whether b a ynU&'or Xy'a Eour,t there shall be tkxed agains3 the defendant or'against all'‘de,fendants, when sev-. era1 are held jointly, a ,trialfee of Five Dollars, the same,to collected and paid over In the same manner asln the,case of a jury fee, and In the Justioe Court the trral fee shall be the sum of Four Dollars."' It is evident that these Artl.clespr,ovidefees for a Justice,of the Peace as a Justice of 'thePeace and not in any other character or office. Taking another view, Article 1052, supra, provides fees only foreach"'drlmlna1 action" tried and finally dis- posed of before the Justice of the Peace. Article 24; V. A. P. C defihes "criminal action" as "the whole or any part of the p&sedure which the law provides for brdngtng offendey@c$tz justice". Art. 90, V. A. C. C. P. , provides that if It appears to the magistrate that defendant has committed a "criminal offense" the same proceedings shall be had as In other cases where parties are charged with crime. We think It clear that there cannot be an "offender" until there isan offen'se. If an offense has been commltted, the proceedings then shall be had as In other cases where par- tiesare charged with crime. We therefore conclude that a ~requlre~metit o,fpea&e b6hd by,-8niagi.str~a~te Is not a "criminal action" as contemplatedin Article .lO52,supra. ,It is our "further conclusion that a requirement of peace bond is not a "conviction"as contemplatedby the Legislature in Article 1074, aupra, for the reason that there cannot be a "conviction" unleas there has been an offense. We think It significantthat specific provision Is made defining fees for a Justice of the Peace when sitting as an examining court (Art. 1020, V. A. C. C. P. ), wherein the Justice sits as a magistrate and not as a Justice of the Peace. Brown v.,State, supra, p. 142. Hon. Sam B. Hall, page 4 '(O-6661 ‘In answer,to your first question, It is our opinion that the Legislature has Sailed to provide compensationor fees for a,Justlce of the Peace slttlng as a magistrate in a peace bond proceeding,'forit 1s well establlshed that “to entitle an officer to recelve,Seesor’comml.sslons, the receipt thereof must have been provided and the amount fixed by law. 34 Tex. Juris, page 522, with numerous cases cited. This principle is concrete In foundation for a See ls’essentlallya creature of statute, and we cannot improvise analogy or by lmpllcatlon McCal1s.v. City of Rockdale, et al, Corn.App. 1922,246 S. W. 5.4,655), for In 80 doing we would be In usurpation of a Power conferred upon the Legislature by Article 3, Section 44 of our Texas ConStitUtion. Our statutes having Sailed to fix the amount of Sees, “until the Legislature does so, neither the courts nor interested party, nor any officer of the government can Six it.” State of Texas v. Moore (Sup. Ct. 1.882),57 Tex. 307,321. This being our answer to your first question, it follows that your second question Is answered in the negative by reason of like failure of provlsion for fees. With reference to your third question, since in a peace bond proceeding there Is no provlslon~for “fine” nor is a peace bond,requirement a “misdemeanor”,Article 1055, V. A. C. C. P. , ,whichprovides for half Sees to other officers and to which you refer, Is In our opinion InapplIcabLe. Your third question ia accordingly answered in the negative. Article 85, v. A. c. c. P. ,provldes that if the defend- ant falls to give bond “he shall be committed to jail for one year from the date of the first s requiring such bond.” (Rmphasls ours). As herelnbeiore stated, a Justice of the Peace sits as a magistrate and not as a Justice of the Peace In a peace bond proceeding. We know of no statute authorizing a magistrate ln’a peace bond proceeding to revoke hls order once It Is made. The statute in wording commands that the defendant be committed. There Is no discretion resting In the magistrate. Therefore, in answer to your fourth question, It 1s our opinion that the only remedy whereby the defendant may obtain his . . L Hon. Sam B. Hall, page 5 (0-6661) release is by writ of-habeas COF US'. Ex parte Wilkinson ct. Grim. App. E 26 427; Ex parte SalamY Ct. Crlm. App. (2dj 487; Yours very truly, ATTORNEYGENERAL OFTEXAS BY s/Elton M. Hyder, Jr. Elton',M.-Hyder,Jr. Assistant EMR?rt:aa APPROVED AUGUST 7, 1945 s/Carlos Ashley FIRST ASSISTANT ATTORNEY GENERAL Approved Opinion Committee By s/BWB Chairman