YEWIE EPMERAL
OF ?i?EXAS
Honorable Denver E. Perkins
County Attorney
Gonzales County
Gonzales, Texas Opinion No.O-2683
Re: Justices of the Peace -
Trial fees.
Dear Sir:
Your request for opinion has been received and
carefully considered by this department. We quote from your
request as follows:
"It has been the custom in our County for
many years for the Justice of the Peace, on a plea
of guilty, to enter a judgment of conviction
against the defendant, and, if the defendant has
no money, the Justice of the Peace quite often
permits him to go at large without bail or recog-
nizance and to accept periodical payments of ln-
stallments on the fine and costs. It aometimes
happens that the defendant dies or leaves the State
before the fine and costs are paid. It quite often
happens that neither the Justice of the Peace nor
the Constable make any further effort to collect
the fine and costs after judgment is entered, even
though the defendant still lives in the County,
However, the Justice of the Peace always presents
his bill on the first of the month to the Com-
missioners' Court for his fee of $2.50 in such
case, Our Auditor has advised the Commissioners'
Court that the Justice of the Peace is not due a
fee in such a case since it is not a case that
has been tried and finally disposed of by the
Justice of the Peace. Needless to say, our jus-
tices of the peace take a different view of the
matter. They have asked me to submit these facts
to you for an oplnlon as to whether or not they
are entitled to their fees before the fine and
costs are paid.
Honorable Denver E. Perkins, Page 2 (No.O-2683)
"Of course, where judgment is deferred,
no fees would be due until the judgment is at
least made and entered by the Justice of the
Peace on his docket against the defendant.
"The County Auditor takes the position
that these articles require the judgment to be
extended (i.e., fine paid or defendant jailed)
immediately upon its entry and that unless It
Is executed the case has not finally been dls-
posed of.
"Our County Judge In discussing the matter
with me takes the position that the Justices of
the Peace are not entitled to their fees In such
case unless they show that they have shown due
diligence In collecting the amount adjudged
against the defendant. His view is that, if the
defendant is dead or beyond the reach of the of-
ficers, the Justice Is due his fees; if the de-
fendant still lives in the County and the of-
ficers could execute the judgment, but fall to
do so, that the Justice Is not due his fee.
"I have taken the position that if a judgment
of conviction Is entered and not deferred that
it should be executed at once and that the defen-
dant should be committed to jail unless the fine
and costs are paid In full and that there is no
legal justification for allowing Installment
payments of fines and costs. However, It is my
position that If the Justice of the Peace Ignores
this provision of law and enters the judgment on
conviction or plea of guilty and no appeal is
taken from the judgment that the case has never-
theless been finally disposed of and that the
Justice of the Peace Is entitled to his fee, re-
gardless of whether or not he shows any diligence
to collect the fine and costs."
Article 1052, Vernon's Annotated Texas Code of Crim-
inal Procedure, reads as follows:
"Three Dollars shall be paid by the county to
the County Judge, or Judge of the Court at law,
- -
Honorable Denver E. Perkins, page 3 (No.O-2683)
and Two Dollars and fifty cents shall be paid by
the county to the Justice of the Peace, for each
criminal action tried and finally disposed of
before him, Provided, however, that in all coun-
ties havlng a population of 20,000 or less, the
Justice of the Peace shall receive a trial fee of
Three Dollars. Such Judge or Justice shall pre-
sent to the Commissioners' Court of his county
at a regular term thereof, a written account
specifying 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
Commissioners1 Court shall approve such account
for such amount as they find to be correct, and
order a draft to be issued upon the County Treasu-
rer in favor of such Judge or Justice for the
amount so approved. Provided the Commissioners'
Court shall not pay any account on trial fees
in any case tried and in which an acquittal is
had unless the State of Texas was represented In
the trial of said cause by the County Attorney,
or his assistant, Criminal District Attorney or
his assistant, and the certificate of said Attor-
ney is attached to said account certifying to the
fact that said cause was tried, and the State of
Texas was represented, and that in his judgment
there was sufficient evidence in said cause to
demand a trial of same."
Article 783, Vernon's Annotated Texas Code of Criminal
Procedure, reads as follows:
"When the defendant Is only fined the judg-
ment shall be that the State of Texas recover of
the defendant the amount of such fine and all
costs of the prosecution, and that the defendant,
if present, be committed to jail until such fine
and costs are paid; or if the defendant be not
present, that a caplas forthwith issue, command-
ing the sheriff to arrest the defendant and commit
him to jail until such fine and costs are paid;
also, that execution may Issue against the prop-
erty of such defendant for the amount of such
fine and costs."
Honorable Denver E. Perkins, Page 4, (N&0-2683)
Article 787, Vernon's Annotated Texas Code of
Criminal Procedure, reads as follows:
"When a judgment has been rendered against
a defendant for a pecuniary fine, If he is pre-
sent, he shall be imprisoned in jail until dis-
charged as provided by law. A certified copy of
such judgment shall be sufficient to authorize
such imprisonment."
Article 788, Vernon's Annotated Texas Code of Crim-
inal Procedure, reads as follows:
"When a pecuniary fine has been adjudged
against a defendant not present, a capias shall
forthwith be issued for his a~rrest. The sheriff
shall execute the same by placing the defendant
in jail."
Article 698, Vernon's Annotated Texas Code of Crlm-
inal Procedure, reads as follows:
"On each verdict of acquittal or conviction,
the proper judgment shall be entered immediately.
If acquitted the defendant shall be at once dls-
charged from all further liability upon the charge
for which he was tried; provided that, in mis-
demeanor cases where there is returned a verdict,
or a plea of guilty is entered and the punlsh-
ment assessed is by fine only, the Court may,
on written request of the defendant and for good
cause shown, defer judgment until some day fixed
by order of the Court; but in no event shall
the judgment be deferred for a longer period
of time than six (6) months. On expiration of
the time fixed by the order of the Court, the
Court or Judge thereof, shall enter judgment on
the verdict or plea and the same shall be exe-
cuted as provided by Chapter 4, Title 9, of the
Code of Criminal Procedure of the State of Texas,
Provided further, that the Court or Judge thereof,
in the exercise of sound discretion may permit the
defendant where judgment is deferred, to remain
at large on his own recognizance, or may require
him to enter into bond in a sum at least double
the amount of the assessed fine and costs, condl-
tioned that the defendant and sureties, Jointly
_ . -.
Honorable Denver E. Perkins, Page 5 (No. O-2683)
and severally, will pay such fine and costs
unless the defendant personally appears on the
day set in the order and discharges the judgment
in the manner provided by Chapte,r4, Title 9 of
the Code of Criminal Procedure of the State of
Texas; and for the enforcement of any judgment
entered, all writs, processes and remedies of the
Code of Criminal Procedure are made applicable
so far as necessary to carry out the provisions
of this Article.”
Opinion No. O-616 of this department holds that the
Justice of the Peace's right to compensation.from the county
for his trial fee under Article 1052, C.C.P., does not depend
upon the collection or enforcement of the judgment but rather
on the rendition of & final judgment in so far as the Juris-
diction of his court Is concerned.
Opinion No, O-1759 of this department, holds among
other things, that the Justice of the Peace is entitled to
his trial fee when the judgment he renders becomes final
in so far as his court and jurisdiction are concerned, For
example, If a defendant was tried and found guilty, filed
motion for new trial within the statutory time and the court
overruled the motion and the defendant filed an appeal bond
within the statutory time in order to appeal his case from
the justice to the county court, the Justice's judgment Is
final in so far as his court is concerned and he is en-
titled to his trial fee from the county, regardless of the
outcome of the case in the county court or the court of
criminal appeals.
Opinion No.O-1251 of this department holds that
where judgment is deferred under Article 698, Vernon's
Annotated Texas Code of Criminal Procedure, the justice
of the peace would not be entitled to his trial fee from
the county until the deferred judgment was entered and
until thereafter the statutory time had elapsed to make
it final In so far as the Jurisdiction of the justice was
concerned.
Opinion No. O-1868 of this department holds that
where one justice took a plea of guilty and entered judgment
and another justice issued commitment and placed the defendant
In jail, that the first justice was entitled to the trial fee.
It was also held in this opinion that it was immaterial as to
.- h
Honorable Denver E. Perkins, Page 6, (No. O-2683)
which justice collected all or a portion of the fine and costs.
We enclose herewith copies of Opinions Nos. O-616,
O-1251, O-1759 and O-1868, which contain full discussion of
these questions.
Under Article 698, the justice may defer judgment
in the manner outlined by the statute. However, he cannot
receive his trial fee from the county until the deferred judg-
ment Is entered and becomes final in so far as his jurisdlc-
tion Is concerned. If he enters judgment he has no authority
to extend credit to the defendant and permit him to go without
paying his fine and costs. When his judgment Is entered It Is
the duty of the arresting officer to collect the fine or
place the defe~ndantin jail, unless prevented by defendant's
appeal from said conviction in the manner outlined by law.
However, the justice of the peace is entitled to
his trial fee from the county when his judgment becomes final
in so far as his jurisdiction is concerned. We are also of
the opinion that the unauthorized and illegal acts of the
justice in extending credit to donvlcted defendants would not
defeat his legal claim against the county for his trial fees
legally earned.
It is the opinion of this department that your posl-
tlon in the matter is correct.
Very truly yours
ATTORNEY GENERAL OF TEXAS
By s/ Wm.J. Fanning
Wm. J. Fanning
Assistant
WJF:AWzbt
APPROVED Sept.5,1940
Gerald C. Mann
Attorney General of Texas
Approved Opinion Committee
By BWB, Chairman