OFFlCE OF THE AT7ORNEY GENERAL OF ‘TEXAS
AlJgClN
IIoimrableW, K. M&lain
Crlrnlml District Attorney
oeorgetown, %ixaa
Dear Sirs Opizion !ioZ O-4091
Ret Justices of the Pease - con-
8teblO8 - Fees of Office -
Artlcile1071, C. C. P., Ir
UQOO!l8titUtiOIlEdr
Your reqUe8t for opinion ha8, h8n reOeitd an&
Oareflllly OOll8idt+l-#Bd by thi8 d8p8&tl8Rt. we qUOt8 ipa
your request a8 fOllOW88'
“Will yOU p1ba8e .&VO me 8B OpiniOll011
tde liability of the County on the following
hypothstlaa& oaaet
Wmra a oomplaaintham been filed In the
'Juktloe Court for the violation of Aitiolr I
Seotlon 4.(b) of the Texas Liquor Control Aot;
a warrant of arrest is ieeued~ the Constable
.executsdthe warrant, and brou@t t&e Usfund-
ant before the Justice of the Peace; em examin-
In& trial ia held, and the defendant i8 o~om-
mltted to jail; the oomplaint I8 tranaferrad~
to the County Court, and there dooketed$ the
defendant I8 brought before the Judge on the
cornplaIntand Information filed, end ie aaaeaa-
Od a fine of #lOO.OO and Ooat, and on hit3plea
of guilt, Is oonnrittedto the Jail, where he
lc+ys the same .out at the rate of $3.00 per day.
nQm!5TION; Is ihe county lawfully and
legally liable foi one-half of the fee8 ohar ed
by the Juetloe of the Peaoe and.Constable un8er
Article 1071 end 1072 of the Code of CriEaIoal
Procedure?
426
Honorable ?irK. MoClain, Page 2
"The 'SWOnd qu&ation 1 vmuld like to
have your aapartment answer ieg 18 Article
lC71 Of th8 Cod8 of CrimiMl I'rooeduraa
ViOlatiOn Of ally 0OIi6titUtfO~l prOVi8iOIl8.
"The third question Is; is tho County
l.Isble'to the Justice of the Posoe end Con-
atsble for the fee8 in the Ju8tIae Court,
.where the aom;1aint i8 dismissed in the
County Court, In other words, Ir live or
six cases should be filed against one de-
fendant and the defendant agreed to plead
guilty in one oaae, and the State dI8mi88ed
th8 other four 08898, 18 the County liable
to the Juotion of the Pea08 and Constable
for the four 088ea diemis8ed.R
Article 1055, V. A. C. C. Y., reads 6s followa:
"7!h8oounty shall not be liable to ths
offloer and Witne8a having 008t8 in 8 mla-
domanor case where defendant pay8 hla fine
and aoata. The county-shell be liable for
one-half of the fees of the officers of the
Court, when the defendant fall8 to .payhis
tine and lay8 hle fine out in the oounty
j8ii OF diSQhar&a8 the 8a%e by meana of
working ruoh Sine out on the aounty reed8
or on any sounty projeot. And to pay suoh
h5u Of 008t8, the COUiltyClerk Sba11 i88Ud
his warrdnt'on the County Treasurer in fivor
of such offiaw to be paid out of the Road
and Bridge Yutu'or othir funds not other
vise appropriated."
Artlale 1072, V. A. C. C. P*, read8 as follower
"sheriff8 and OOnstab1e8 88ZTIng pro-
cess and attending any examining court In
the examination of a misdemeanor CE8B ah311
be entitled ta suoh.feee as are allowed by
kiw for similar ssmioer in the trial of
such caae8, not to exosed three dollar8 In
nny one ua8e, to be pald by the defendant
in case of final aonviotIonrw
Opinions Noa, O-1823, O-e877 and 045057 Of thla ds-
psrtaent -88ed on ycur flr~atquestion. Thee8 oplnions answer
ROnOrable W. Xi MoC)din, FE@ S
your rirqt queatlon in the 8fffxmatIve. Rowever, In the88
opinion8 no question wao raised as to the oonstitutiona1ity
of Artlole 1071, V. A. C. C. P. Thi8 departmnt, however,
in 80M0rinC: the question ,inthe affIX?IZitIVe~WIth
m8peOt
to JUstiCo8 of the Pea00 eXpl'O8s1ystated in Opinion8 N08.
O-1823 and O-308?, that thlr degartmen$ did not pama on the
aonstltutlonality of Article 1071. We enaloee herewith
copiea of aaid opInIons for your information.
Your 8eOOll6 QU88tiOlldil%Otiy rai8W the OOn8ti-
tutlonallty of Artlole 1071, V. A. C. C. P., and we will
prooecd to enewer thlm QUcl8tiOll.
Artiole 1071, V. A. Ci O. Pa, reads a8 followsr
*Justlosr of the peaoe who 8it a8 an
ex8inInLngoourt in mlwhmeanor aa8e.s shall
be entitled to the fmme few allowed b law
to 8~0th justloes for simller 8emSaer 31n the
tX?ialof 8Ueh Oa6.8, not t0 rSO& three
do-r8 In any on. oaw, to k
defsndent in oaaa of final oan
We peroeive from thb artlole that the jurrtioots
right to conpensatlon dspends upon the,fiaal oimviotlon of
the dsfendant. Xf the ustios bind&the defendant 0var to
the oourt having Jurle otion OS th&Qffeose and the de-
renda i8 finally eonv&otoU the &6tioe wlli rsoelve se-
mumretlon. If the justibo does not bind the dafendant
over, he will not reeelve any ranunaretion. D0es the ju8tioe
have any pecuniary interset in binding over the dr$eeldant7
We think so beoause this Is the ox&y way in which ha has
any ohanee to reoelve ramneration under Article 1071;
V. A. C. C. 2.
A.rtIele5, Seotlon I.I.,
of our Stats Ccn8tItktlon
provides:
"No judge ehsll 8It in any oaae wherein
he may be ln$erasted."
7!h8 CaX86 Of XX PlU-tS KOll@y, 1.0 8e *. (24) 7@3,
held Article 1006, C, C. PI, 1925, UIlOOLl8titUtiOtl81 &:8 bs-
lng'fn violation of Artlole 5,.8eotlOn 11 of OUT Stat0 Con-
atitutlon. mi8 article all0wed feei to justioea OS the
peaoe'ln oases of conviction of dsfendante and allbved nom
.for aoquittale.
Eonorabls W. K. WClala, As@ 4
rie quote frolpthe oaso of IX Darts Owens, 13
'2..8. (ed) 372, aa r0iim:
"On Deosmbor 1, 1927, a judgment of
oonviotlon~wae entered againat appellant
In the county oourt or Daoo,qdochescounty
r0r the 0rre580 or dieturbing ~~eilgi0~8 wor-
ship, and a line of 425 WU# thsroln assessed,
tof#her wfth .1!50.05 bolt& 05 the 224 day
or DeOambsr, 1s27, a opplalas
pro rino was is-
sued under suoh judgment and appsllant ar-
rested. .Thoreartershe sued out a writ-or
habeas corpus, and was remanded on a hearing
to the custody or the eherigi 0r Daoo@oohes
County, f'ro3i
whioh judment she has appealed.
tiAppellantpresents the point that she
is ille+Dxllyrestrained, in t&t she wan con-
victed in the justios oourt of Xaowdooheo
oounty on a trial had before a justipe or
the peaoe who had taken tha oolaplaint&galnst
ap,pellantand who wae dimqualitied by virtue.
or his interest in tha matter ariain& Prom
the ract that hia oompansation depended solely
upon a oo5riotion, and that rr0pna judgment
fIndi!.&her guilty 15 suoh justice oourt she
a>pealsd to the oounty ooUrt with the rttrult
aroreaafd.
vho agreed states@ 0r racts appearing
in tho reoord is somewhat ambiguous, but it
ifirairly inrerabls thereiron that the arors-
aaid prosecution in the county OoI&rtof Xaoog-
doohes county, !&ix.,was but a oontinuation or
the void proasedlng in jwtlce Court, an& that
appellant was .trlsdand oonvloted upon the
complaint only brought up'from said justloe
court. The record further shows that, oi the
costs assasoed a&n& appellant,'the amount
of $:4 was justice oourt costs, part of whioh
wora claimed by $nd.tared for tha jwtlae ol'
the paaoe beforc"whom relator wa8 orielnally
t~riod. It has been pointedly droided in the
case or fx prmts &ally (Tex. cr. App.) 10
S. '5:.(26) 728, that e'justioe of the peaae
is dlssuallfied to try .criminaloases under
Honorable W. I[.Mcclaln, page 8
the law as It erirrtodprior to said opinion .
which granted to him reorr.onlpis tha event
or oonvIotlon. See, ala0 Ex parte Taylor
Fest (No. 10995 Tss. Cr. App412 s. w. (2d)
216, dm:ded Deoembar 19, 1928, not get orri-
olally reported.
"The ap:nllant having brought heraelf
within the rule laid down In these oases
makes It our duty to order hor disoharge for
ths'reaaeonswhich hare already been.iully
rrtqted and whloh we do not rsol it neooaaary
to hero repOat.'*
In anBIer to your asoond QuostIon we ro6pootfully
edvleo that It ir ok opinion that Article 1071, v. A. c. 0. P.,
is In vlolatIoa or Article 8 seotioa 11 or our Stats constl-
tution and thererqre unoonetitutloaal.
It follows that opinion6 Ao6. ~1823, 0&3?7 and
04057 or this dopnrtmeat should be overruled In ad rar aB
they alldrrr4e8 to justiieesor the pea00 under Artiole 1071,
V. A. C. C. P. We think oplnlom ??oa.O-1823 and 04?B77 are
as they apply to eonstables. This answers
oorz%ot in 80 ,faar
your rim question.
In answer to your third ‘+mmtton It Is our opinion
that the oounty would not bsLllabl6 to the oonatable ror dIs-
misued OU~IBLI,
ior In auoh iwatanoecrthe defendant would not
be aonvioted and would have no finer to lay outsor plDrkout
ma oontemplated by Article 1055;V. A. 0. 0. P., .and a8 poInt,ed
out above the justlaes of the peaoe wwld be entitled to no fee8
whatever under Artia3.e1071, V. A. 0. C. Pb
Opinion No. O&OS7 Is hereby cverruled la Its entimtp.
O~lnIqn KOS. O-1823 and O-2877 or this department are overruled
In BO far aa they conflict wIththIr opinion.
Yours very truly