223
OFFICE OF THE AmORNEY GENERAL OF TEXAS
AUSTIN
HonorableBen J. Dean
DistrictAttorney
Breckenriaga,Texas
, Dear Sir:
Your request f0
carefullyconkideredby t
your request as fol.l.orvs:
Where a defend
ing wlillsintoxlcete
9, Vernon*s Annotated Texas Code of
Cri 0ads as follows:
aefendant is inaictea.fora felony
nvicticn f,ia :udsbnent is by fine
or ccafine:xe&,in 12x county jail, or b:rLath
such fioe Ed confineaant in the county jail
or convicted of 2 nisdemanor, no coats shall
be pid by the State to any officer. All
costs in such C~~LJSsi>:\llbe taxed, asseesed
2nd oolleaf,e~23 in misdemaafioroa8es.W
f!GnOrable Ben J. Dean, page 2
Article 1071, Verno:z8sAnnotated Texas Code of
cxj,siBal
Procedure, reads as follci4s:
*Justices.of thepeaoe who sit as an
examining court in zisdoaeanor cases ahall
be eutitkd t0 the Salxd 'feesallowed by
lmv to such-justicesfor stiilar services
in the trial of suoh cases, not tc exoeed
three dollars in any one case, to be paid
by the defendant in case of Pin&l convic-
tion**
~~ ~--Ki%icle ,1052, Veruon*'s
Annotated Texas Cods of
, Criminalprocedure,,reads as fol.lom:
"Three Dbllara shall be pala by the
county to the County Judge, or Judge or
the Court ut Law, and Wo Dollars and fifty
cents shall be paid by the county to the
Justice of the Peace, for each crizihaal
action tried and Pirally ais::oseaof be-
Pore him. Provided, hoY:ever,that in all
counties having a population of 20,000 or
less,,the Justice of the r"e&cashall re-
ceive a trial Pee of Three Dclfars. Srtch
Judge or Justice shall present to the
Comissioners' Court of his cod&y at a
regular tern thereof, a writttiiaccount
specifying each criirinalaction in which
he claim such Pee, CGztifiGa 5y such Judge
or Justice to be correct, aS Piled with
the County Clerk. The Comi33ioaerst
Court shall approve such account for such
amount as they find to be correcti;and
order a draft to be issued ur,onthe County
Treasuror in Psvor of such Jud!zeor JusSice
for the mount so approved. Provided the
Comissioners' Court shall net pay any
account or trial Pees in auy case tried and
in which an acquittal is had unless the
State of Texas was rsg::esontedin the trial
of said came by the County Attcrno:~,or
his assistsrit,Crisinal FlistricbAttorney
or his assiatnnt, ilndthe cartificats of
said Attcrnsy is n*,tnchedto mid rlccount
gcaorableBen J. Dean, Page i
certifyinsto the fact that said cause was
tried$ and tha State of Texas vns repre-
sented,and that in his judgment there was
sufficientevidence-insaid cause to denmnd
a trial Of sane."
The population of Stephens Countyr Texas, is loss
than &O,OoO inhabitantsaccording to the 1940 Federal Cen-
8lS.
Opinion No. C-2877 cf this department passes on
a situationwhere a Justice o? the Penae (on the fee sys-
tem) holds an examining trial where a defendant is char,ned
with a felony, to wit, drlvirg a zotor re3icle while in-
toxicatedand where the constable (on the fee system)
cakes the arrest for em-ining trial, etc., o.ndw3are the
Grand Jury indicts the defendant and %here upon trial the
defendantis @*zan a fine and jail sentence and where the
defendant:does not pay his fine and costs but lays the
8638 out in jail or works it out on the county roads or
ether county projects. This opinion holds that under
said facts the county is liable to the Justice of the
Peace and constable for one-half of their legal examining
trial fees in said cause. ?ieenclose hercAt!i a cow of opin-
icn No. O-2877 for your information.
In ansvierto your first question you are res-
pectfullyadvised that it is the opinicn of this depart+
kent that the Justice of the Peace of Stephens County
would be entitled to collect a fee of $3.CC from the
defendantunder the facts stated:
fn answer to your seccnd question it is our
opinionthat under the facts stated if the defendantcould
not pay the fine and costs and laid 9828 out indai.1 or
ororkedit out on the county roads or on a county project
the county ~:wrJahe liable to the Justice for one-half
of his examining trial fee under Article 1055, 7. A. T.
c. c. P.
,,,\..
.
,.
226
P-.
.,
cosorableBen J. Dean, Page~4
It IS to be understood tixt we do not pass upon
the oonstitutionality .ofArticle 1071 of the Code of
criatnalProcedure, s-spra.
1 VerJr&Cly yours
'UF:GO
1