Honorable llLllignT. Curry
county Attorney
Bumet County
Bum&, Texas
Dear sir: opinion No. O-9270
Rer Upon rhaa doea the reaponsi-
bility for taxing aosts fall
in justioe and county oourts,
and another question.
Your recant request for UI opinion of this department on the
questions herein stated has been received.
The questions presented in your letter are a.6follows:
"First, upon v&an does the responsibility for
taxing costs fall in justios and county courts?
"Secondly, when a oounty court cam is filed
originally in a justioe court, arrest made therefrom,
examining trial waived and the oaae transferred to
oounty court for trial or plea of guilty there, . . .
is the juatioe rho did a11 the work entitled to a fee
for transferring? to a trial fee? to both?
Wa quote from Texas Jurisprudenoe, To';.26, page 799,
18 follows:
"Roils I justioe of the peace irrnot I ‘clerk of
the court' within the meaning of any statute,.yt, by
requiring him to keep the reoords of his oourt, the law
in sffeat imposes upon him the duty of loting a8 clerk
in his own court without my emoltnnentother than that
to which ha may be entitled 18 justioe. . . .
"In addition to a aivil docket, a justice is re-
quired-$0 keep such other dockets, books and reoords as
may be required by lew; also a fee book in which he shall
be taxed all oosts accruing in every suit oommenoed be-
fore him. . . .*
. .
\
Honorable William T. Curry, Pry;02 (o-3270)
hrtiole 2382, Vernon's Annotated Civil Statutes, reads in
part a.8follows8
"Each justice shall keep L civil docket in
whioh he shall enters
u120 He shall also keep ouch other dockets,
books mnd records as may be required by law, and shall
keep a fee book in which shall be taxed all costs lc-
truing in awry suit camnenoed before hime"
Article 1085, Coda of Crtiinal Procedure, reads in part 88
fOlhW8 8
I o ear& justice of the peace, shall keep
a bookpa& which shall e entered the nrPnberand
style of eaoh criminal action in their respeotive
courts, and the name of eaoh witness subpoenaed,
attaohsd or recognized to testify therein, showing
whether on the part of the State or the defendant."
bptiole 1013, Cods of Criminal Prooedurs, reads a8 follcwsr
"No costs shall be payable by any person
until there be produced, or ready to be produced,
unti;the parson chargeable with the same8 L writ-
ten bill oontaining the items of such oosts, sign-
ed by the officer to whcsa such oosts are due or by
whom the 8eme are charged."
Article 3770, Vernon's &n&ted Civil Statutes, provides as
followsr
"mar the adjounment of a district or oow@
oourt,.the clerk thereof shall+ax the costs in 0-e
ease in which L final judgment h*8 been rendered, and
issue execution to enforce such~~udgment end collect
such costs."
It is statedin Texas Jurisprudence, Vol. 11, Page 311, thats
"0 0 0 Taxing costs is the duty of the olerk after
judment, rawellis before, aad in my 018e is a duty im-
posed onthe clerk alone,,D o D 0"
Costs are taxed against the defendants in misdea\tianor
oa8bse
Honomble li1lia11T. CWry, Page 3 (013270)
In the foregoing, you .r. respeotfully .dy$nsd that it is
the opinion of this department th.t it is the duv of the justice of
th peaoe tot.x all costs .coruing in his court .nd the S~MA duty is
imposed upon the olsrk of the county court regarding .llo.saa 1~1th.
county oourt.
From your letter .nd our oonvers.ticn with you, wi+&b&r.-
eno. to your second question,we understand the facts tobe substmnti-
.lly .a follows: A arrmplrintwx. filed intha justioe oourt oh.rging
the dafend.nt with an offense of .tuch. nature th.t the jusltioeCO&
h.d no jurisdiction of or over the sruue. The oompl.int .nd other p.-
pars in the 0.8. were+r.nsferred to the county oourt by the justice of
the pe‘ce. Iioexamining trill IU.Sh.d, but .s above indio.ted, the
oanpl.int which should have been filed originally in the oounty court
w.8 in.dvertently filed in the justia ocurt.~ For the purposes of
this opinion, we do not consider orp.88 upon .W proposition rag.rd-
ing sxanining trials in misdemernor,..sss, bsc.usa, 8s we understmd
the f.ots in this o.s., this question is not before ~8. Therefore,
you .m rdvised that it is our opinion th.t where .QS. is originally
filed in . justice oourt, .nd is . 0.8. suoh.8 . justice court h.s
no jurisdiction the suna o.nnot be ldg~lly trulsferred to the county
court, but it would be neoessary to file suoq 0.8. origin.lly in the
~oountyaourt.
Seation 18, Article 6 of the St.ta Constitution, provides in
* Justlo of the Pa.00 sh.ll h.ve jurisdiction
in ar+n.l m.tte~s InI 11 0.8.. where the pen.lty or
fins to ti~impcasd bu 1.wm.y not be more tbn Tlo
Hundred lbl1.m. . . . Of which exclusive original
jurisdiction is not giwn to the district or ocunty
courts; .nd such other jurisdioticn, orFaina1 and civil
IS rmry%beprovided by 1.~. . . ."
Where . 0.8. $IJ&aadwrtently filed in . justice court when
the soa& should h.w been filed originally in the oounty oourt, them
is Wlleg.1 authority authoiizing thetr.nsfer of such. 0.8. to the
county court. The justios court never .cquires jurisdioticn of said 0.8.
urd .ny proceeding of the justioe oourt in oonneotion therewith is wholly
void. The justioe of the pe.oe is entitled to no fee whatsoever in such
. 0.*e.
Trusting th.t the foregoing fully .nsvam your inquiry, we .m
Yours wry truly
U'TOREEYGEXERALOFTEUS
mm
APPROVED MAR 24, 1941 By s/ Ardell Rllimns
Ger.ld C. M.nn /s Ardrll Rilli.n~~
ATTORBEYG~OFTEXAS Assfst‘nt