TEEA~~~ORNEY GENERAL
OFTEXAS
.
HMorable T; 'GilbertAdams
C%init~A$tdrneg
J&isp&'County
Jasper,
-.,~ Texas
Dear Sir: OplniofiNon;o-52=- “‘~
Re: Authdrity.df a.Ju‘etibebf3hV
Pe&c'Ei
to colIect“a‘fee-.id~'~he
issuance
.., of a search *. .~
warrant.
__._ ~.
Your request for ‘dpinionhas beetirec&iVed~ati~~bai+d
-fillyconsideredby this department. We quote from ycur request
as follows: _^
"I would,thank you Fo furnish Biewith'an
opinion as to what method and manner a Justice
of the Ptiace"
should.'fbllowintiollectlngfees f‘dr
IsSuing a Search Warrant t5 Peace"Offlcersin lii-
vestiga,tionof Liquor violationsand other violaL
tions which do not borneund.@rthe jurisdictionbf
the Justice Court, and in cases-~thatdo not come
under the-jurisdictionupon trlCil,"ofthe Justice
of the Peace; when the Bearch warrant Is used by
the officer and no violation sufflc'ientto pro-
secute, is found on the premises searched..
"Undbr Article 1066, Code bf Criminal Pro-
cedure, Texas Statutes, it reads as follows:
"'Justicesof the'peac.eshall receive the
following fees in criminal actions tried before
them. to be collected of the defendant in case of
his condytion:
. For each warrant, Seventy-fivecents.
. . . ..f . a .o 1
"I,'ponot find any provision in the Statute
whereby a Justice of thb Fe&e is..pr&ected
__ .- in
hlKfee .whenhe issues a S‘earchWarrant for the
Peace Officer an&the violation, if one is found
to'exlst, comes under the jurisdictionof the
District Coiirtor the County Court, OP where it
is found that there is not bufflclent vlolatioii
to justify prosecution. I am referring especially
., ., ,.,
Honorable T. Gilbert Adams, page 2 o-5286
: ,,
to violations of the Liquor Law and warrants is-
sued by the Justice of the Peace for State Liquor
Inspectors in their efforts to curb the violation
of the Liquor law8 in a dry area.
,"IWould assume that if there Wa8'.nOtsuffi-
tilefit
@vld‘EhCefbuduna
to ijros&de.a violationupon
which a Search wartiknth&s iSSUd, there'wouldbe
no f&e payable to'the Justide of the"Peace,but in
th& event ther'&.'is'~sufficibntevidence'.found
by .'
reason"of the warrant, there Is some way to protec,t
the Jtisticefor his services in the issuing of
the warrant." .
-,' Article 1066, Revised Code of CVimlnal"-Proc,edure
of
Texas ,1925,referred,to~ifi your lette?,'wasrepelled in 1929"by
H.B. 64 of the 41st Legislature Bf Texas, Firat Called Session.
_. There is no Texas statute allowIng ju8tYkes'ofthe
peace fees for issuing search warrants of any character.
."
We quote from 34 Texas Jurisprudence,page 511, as
fOllOW8:
"As hereinbeforestated, the compensationof
$ublic officers is fix& by the ConstitutionSir
statutes. An bfficer may not claim or reach aiiy
%onSy without a law‘.authorizing him to do so, and
clearly,,fixing the gmount to which he Is entitled.
. . . .
- In"vi,ewof the above it is our opinion that"justices
of-'thepeace are not i3ntftledto any fees for Issuing any
character of search warrants.
We enclose herewith for your informationa copy of
opinion'No.O-4091 of this departmentwhich holds Article 1071,
Vernon's Annotated Texas Code of Criminal Procedure (an article
allowing justices of"the peticeexamining tr'ialfees in misde-
meanor cases to be tcixedagainst the defendant on conviction)
to be unconstitutional.
Honorable T. Gilbert Adams, page 3 o-5286
Very truly yours
ATTORNEY GENERAL OF TEXAS
By s/Wm. J. F&nning
Wm. J,“Fannlng
Assistant
WJF:mp:wc
Encl.
APPRm MAY 18, 1943
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BIsBChai'rman